Saint Paul/ Racketeering Law Suit Update
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posted by Bob at Friday, December 07, 2007
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Friday, December 07, 2007
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Previous Posts
- ELF YOURSELF!
- Saint Paul/ Racketeering Lawsuits Update
- St. Paul Police Chief John Harrington target of tw...
- Saint Paul/ RACKETEERING LAWSUITS UPDATE
- Defendant says his acquittal is also vindication
- Saint Paul/Episcopal Homes, elderly tenants victim...
- City of Saint Paul takes the low road in obstructi...
- More law suits!
- St. Paul / City's contract efforts faulted
- Ad Hoc Legislative Agenda Committee
19 Comments:
For the new folks here. You can access the RACKETEERING Lawsuit complaints to the right of the screen on the front page beneath the Scales of Justice. Also do a search of this blog on the front page using words like "Racketeering", housing, etc.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et. al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. JOINT MEMORANDUM OF
LAW REGARDING
DEFENDANTS’ MOTION TO
AMEND PRETRIAL
SCHEDULING ORDER
City of St. Paul, et. al.,
Defendants.
Sandra Harrilal, et. al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
Thomas J. Gallagher, et. al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et. al.,
Defendants.
Plaintiffs in Frank J. Steinhauser, III, et al., Sandra Harrilal and Steven R. Johnson in
2
Sandra Harrilal, et al., and Plaintiffs in Thomas J. Gallagher, et al., through their undersigned
counsel, submit this Joint Memorandum of Law regarding Defendants’Motion to Amend the
Pretrial Scheduling Order.
INTRODUCTION
Defendants seek an extension of the dispositive motion deadline. Plaintiffs’ counsel
have been willing and continue to be willing, to stipulate to the extension of the dispositive
motion deadline, but only if there is a definite timeline for the production of the restored email
boxes. Prior to learning inmid-October 2007 that Defendants had only completed half of the
email restoration process that had begun in the spring of this year, Counsel for Plaintiffs were
willing to agree to the extension. However, Defendants’ unwillingness to agree to produce
the remaining restored email boxes by a definite date leaves Plaintiffs in a position in which it
cannot agree to an indefinite extension consistently proposed by Defendants.
FACTS
Between the hearing on the motion for sanctions on August 20, 2007, and October 16,
2007, Ms. Seeba and Mr. Engel talked numerous times about an extension for the dispositive
motion filing deadline, but it was with Mr. Engel’s understanding that the email document
production would be completed and the other documents not yet produced by Defendants
would be produced in a timely fashion so that Plaintiffs could start review of same. On or
about October 12, 2007, Mr. Engel learned from Ms. Seeba that only half, 40 of 79, of the
requested email boxes had been restored. Engel Aff. at para. 2.
3
Concerned over Defendants’ delay in completing the email project, Plaintiffs’ counsel
sent a letter to Ms. Seeba on November 21, 2007, addressing the Plaintiffs’ concerns with
Defendants’ conduct in relation to the evidence discussed on the Court’s November 13, 2007,
order, including the emails, TISH reports and PHA documents. Counsel for Plaintiffs would
not agree to an indefinite extension without any deadlines for Defendants’ completion of the
email restoration project. Engel Aff. at para. 3. See Exhibit “A” to Engel Aff.
Pursuant to the Court’s Order dated November 13, 2007, on November 26, 2007, Mr.
Shoemaker, Mr. Engel and Ms. Seeba met and conferred in good faith in an attempt to resolve
the disputes regarding Defendants’ motion to amend the pretrial scheduling order and to
establish a protocol for the production of evidence. Engel Aff. at para. 4.
Plaintiffs’ counsel sent a letter to Ms. Seeba on November 29, 2007, confirming the
issues that were discussed in the November 26, 2007, meet and confer. Engel Aff. at para. 5.
See Exhibit “B” to Engel Aff.
During the meet and confer with Ms. Seeba on November 26, 2007, Mr. Shoemaker
and Mr. Engel inquired as to the current status of the email restoration project since October
12, 2007, when only 40 of 79 email boxes were restored. Ms. Seeba did not know the status
of the email restoration project or whether more than 40 email boxes had been restored since
October 12, 2007. Plaintiffs’ counsel requested thatMs. Seeba contact her IT department and
report back to that afternoon or the following day with a progress report on the email
restoration progress. As of November 30, 2007, no progress report had been made and
Counsel for Plaintiffs sent another letter to Ms. Seeba requesting a status report on the email
4
restoration progress, suggesting 30 days to complete the project so that a Stipulation for an
extension could be executed by Counsel for Plaintiffs. Engel Aff. at para. 6. See Exhibit “C”
to Engel Aff.
At approximately 6:00 p.m. on Friday evening November 30, 2007, Ms. Seeba sent a
fax to Mr. Shoemaker and Mr. Engel which explained that 68 of the 79 email boxes had been
restored. Mr. Engel spoke with Ms. Seeba on Monday, December 3, 2007, requesting a
definite timeline of 30-45 additional days for completion of the email restoration project so
thatMr. Shoemaker andMr. Engel could agree to an extension of the dispositivemotion filing
deadline. Ms. Seeba stated that she could not agree to a definite time period for completion of
the email restoration project until her IT department met to discuss the project on Thursday,
December 6, 2007. Ms. Seeba did acknowledge that it may be possible to agree to a definite
completion date for the email restoration process, depending on what she learned after her IT
department meeting on December 6, 2007. Engel Aff. at para. 7.
ARGUMENT
The primary measure of the “good cause” standard under Rule 16 of the Federal Rules
of Civil Procedure is the moving party’s diligence in attempting tomeet the casemanagement
order's requirements.” Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001), citing,
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). This Court, in
deciding scheduling order conflicts among parties, has stated, “[M]indless subservience to the
dictates of a Scheduling Order should [not] overshadowour fundamental obligation to achieve
a just, speedy, and inexpensive determination of the underlying civil claim, particularly in the
5
absence of any prejudice to the complaining party.” Medical Graphics Corp. v. Hartford Fire
Ins. Co., 171 F.R.D. 254, 264 (D. Minn. 1997).
Again, Plaintiffs’ counsel agrees that an extension to the dispositive motion filing
deadline is needed. However, Plaintiffs are also entitled to “a just, speedy, and inexpensive
determination of the underlying civil claim.” Id.
Defendants will not agree to produce the remaining email boxes by a certain date and
thus have demanded that Plaintiffs merely agree to further extensions but without any true
deadlines. Plaintiffs have what appears to be a large task in searching these restored emails,
and they would like to conduct their search procedure in a reasonable manner, conducting
searches for certain terms contained in the emails documentation. Defendants’ counsel claims
that emails have been available since August of 2007. Defendants’ counsel fails to disclose
how many email boxes were available in August – certainly less than half, the amount that
Defendants claim were available in mid-October. Plaintiffs cannot agree to an indefinite
extension, or even a date certain in the future for the dispositive motion filing, without
knowing when the remaining email boxes will be restored and produced by Defendants for
Plaintiffs’ review. The deadline for Defendants’ completion of the email restoration project
needs to be “set in stone” at this point, as that time period for restoration triggers all remaining
time periods under a modified scheduling order.
Defendant’s conduct in failing to place a “litigation hold” on emails has created the
continued delay and the issue now before the Court. The discovery period ended in this case
6
March 2, of 2007. Now, ten months later, we are still waiting for the restoration of email
boxes, and Defendants will not agree to a date certain for production of these documents.
Plaintiffs are also waiting forDefendants to finally comply with their obligations under
court rules to fully produce all City documents related to the City’s cozy relationship with
PHA, the City’s largest low-income landlord in the City. See Shoemaker Aff. in support of
Plaintiffs’ response herein.
According to Defendants, it took until October 12, 2007, to restore 40 of 79 email
boxes. On November 30, 2007, Defendants’ counsel claimed that 68 of the 79 email boxes
were restored. Plaintiffs would agree to an extension of the dispositivemotion filing deadline
if Defendants would commit to completion of the project and production of the other
documents within a short, reasonable time period.
To this point, even with Defendants claming that 68 of 79 boxes restored, Defendants’
counsel has been unwilling to agree to a date certain for production of the remaining email
boxes, thus precluding Plaintiffs from agreeing to an extension of the dispositivemotion filing
deadline.
CONCLUSION
For the reasons set forth above, Plaintiffs request that the Court deny Defendants’
request for attorney fees and costs for bringing this motion, that the Court amend the pretrial
scheduling order, but that the Court also inquire as to the Defendants’ email restoration
process, and require Defendants to produce the remaining restored email boxes and other City
documents related to PHA, within a reasonable time, on a date certain, for review by
7
Plaintiffs’ counsel.
Respectfully submitted,
SHOEMAKER & SHOEMAKER, P.L.L.C.
Dated:December 3, 2007 By: s/ John R. Shoemaker
John R. Shoemaker (Attorney Lic. #161561)
Centennial Lakes Office Park
7701 France Avenue South, Suite 200
Edina, Minnesota 55435
(952) 841-6375
Attorneys for Plaintiffs Steinhauser, et. al.
Attorneys for Plaintiffs Harrilal, et. al.
AASE, ENGEL & KIRSCHER, PLLC
Dated:December 3, 2007 By: s/ Matthew A. Engel
Matthew A. Engel (Attorney Lic. #315400)
11282 86th Avenue North
Maple Grove, Minnesota 55369
T: (763) 416-9088
F: (763) 416-9089
Attorney for Plaintiffs Gallagher, et. al
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., REGARDING DEFENDANTS’
MOTION TO EXTEND
PRETRIAL SCHEDULING
ORDER
Defendants.
Sandra Harrilal, et al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
Matthew A. Engel, being duly sworn upon oath, states and deposes as follows:
1
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
regarding Defendants’ Motion to Amend Pretrial Scheduling Order.
2. Between the hearing on the motion for sanctions on August 20, 2007, and
October 16, 2007, Ms. Seeba and I did talk numerous times about an extension
for the dispositive motion filing deadline, but it was with the understanding
that the email document production would be completed and the other
documents would be produced in a timely fashion so that Plaintiffs could start
review of same. On or about October 12, 2007, I learned from Ms. Seeba that
only half, 40 of 79, of the requested email boxes had been restored.
3. Concerned over Defendants’ delay in completing the email project, a letter was
sent to Ms. Seeba on November 21, 2007, addressing the Plaintiffs’ concerns
with Defendants’ conduct in relation to the evidence discussed on the Court’s
November 13, 2007, order, including the emails, TISH reports and PHA
documents. Counsel for Plaintiffs would not agree to an indefinite extension
without any deadlines for Defendants’ completion of the email project.
Attached hereto as Exhibit “A” is a true and correct copy of the November 21,
2007, correspondence.
4. Pursuant to the Court’s Order dated November 13, 2007, on November 26,
2007, attorney John R. Shoemaker, counsel for the Steinhauser, et al. and
2
Harrilal, et al. Plaintiffs, and I met and conferred in good faith with Louise
Toscano Seeba, attorney for Defendants in the above entitled matters, in an
attempt to resolve the disputes regarding Defendants’ motion to amend the
pretrial scheduling order and to establish a protocol for the production of
evidence.
5. A letter was sent to Ms. Seeba on November 29, 2007, confirming the issues
that were discussed in the November 26, 2007, meet and confer. Attached
hereto as Exhibit “B” is a true and correct coy of the November 29, 2007,
correspondence.
6. During the meet and confer with Ms. Seeba on November 26, 2007, Mr.
Shoemaker and I inquired as to the current status of the email production
project since October 12, 2007, when only 40 of 79 email boxes were restored.
Ms. Seeba did not know the status of the email restoration project or whether
more than 40 email boxes had been restored since October 12, 2007. We
requested that Ms. Seeba contact her IT department and report back to us that
afternoon or the following day with a progress report on the email restoration
progress. As of November 30, 2007, no progress report had been made and
Counsel for Plaintiffs sent another letter to Ms. Seeba requesting a status report
on the email restoration progress, suggesting 30 days to complete the project so
that a Stipulation for an extension could be executed by Counsel for Plaintiffs.
Attached hereto as Exhibit “C” is a true and correct coy of the November 30,
2007, correspondence.
3
4
7. At approximately 6:00 p.m. on November 30, 2007, Ms. Seeba sent a fax
which explained that 68 of the 79 email boxes had been restored. I spoke with
Ms. Seeba on Monday, December 3, 2007, requesting a definite timeline of 30-
45 additional days for completion of the email restoration project so that Mr.
Shoemaker and I could agree to an extension of the dispositive motion filing
deadline. Ms. Seeba stated that she could not agree to a definite time period
for completion of the email restoration project until her IT department met to
discuss the project on Thursday, December 6, 2007. Ms. Seeba did
acknowledge that it may be possible to agree to a definite completion date for
the email restoration process, depending on what she learned after her IT
department meets on December 6, 2007.
8. Because of the delay in the Defendants completion of the e-mail restoration
project, started sometime early this spring, Mr. Shoemaker and I have sought a
commitment from Ms. Seeba for completion of the project. Ms. Seeba’s
proposals for time periods for an extension have consistently contained no
deadline for the City’s completion of the restoration project.
FURTHER YOUR AFFIANT SAYTH NOT.
Dated: 12/3/07 s/ Matthew A. Engel__
Matthew A. Engel
Subscribed and sworn to before me
this 3rd day of December, 2007.
s/ Bradley A. Kirscher
Notary Public
Under Seal
Hi All,
There is more folks. I am having trouble copying the motion. I will get the rest of it up later today.
This is just the other side of what Bob posted earlier. In the earlier one the city says its taking longer than we thought for the IT people to recreate all of the deleated emails from the 79 people that the plaintiffs have requested to have every email ever sent to or from including spam... We thought we had a deal with the lawyers for an extention and now they back out on us...
In this one the plaintiffs are saying that's not our problem judge, make the City do it.
JMONTOMEPPOF
Chuck Repke
Trouble is Chuck....the city is so used to picking on people that just lay down and take it that they don't know how to respond now that they happen to have had the misfortune of running into a bunch who don't mind a knock down drag out fight. So what's the city do? They start destroying all the evidence, or at least make it appear that way, and then when they get caught at it they cook up this BS story about how they really do have the missing emails. Kinda like the Rose law firm files with the Clintons huh Chuck?.....one minute they are gone and the next minute they are in plain sight. The city has ahd 4 years to produce these Chuck, don't you think that's long enough?"
9:42 cool and are we going to find out the at Hillery shot Vince Foster and dragged the boddy out to Arlington herself?
I love these conspiracy stories aren't the great?
There was no destroying evidence. This judge has pretty much already said that. The City can after a period of time through away old crap. They just can. They don't have to keep every spam email.
What the lawyers have asked for was to review every piece of spam ever sent to 79 employees of the City. They already have all of the files. They have everything that the City ever viewed as being official stuff. What they want is to view every email that came to Andy Dawkins (from his wife, the kids, whatever) and determine if it has anything to do with their case. At first the City said that anything more than three years old has been pitched. Then the City came back and volunteered that given enough time the IT staff could recreate the deleated emails from the old master tapes.
So, it hasn't been "four years" it has only been a few months that the IT staff have been working to recreate for the plaintiffs what the city legally had thrown away.
Maybe they will discover who shot Kennedy too...
JMONTOMEPPOF
Chuck Repke
Tim Ciani is at work again on the Chief of Police.Great work Tim Expose these crooks for what they are.
I thought Lee Oswald shot Jack Kennedy.
Repke do you know something we don't?
Point of Information All things relative City Attorney Louise Seeba should be disbarred, wilful neglience to usurp Federal RICO laws, wilful failure to provide the records in a timely fashion, eventually a Federal Grand Jury or FBI intervention. The Taxpayers will suffer for this city attorney making over $100,000.00 yrly for her pecuniary gain, wilful failure to zealously represent the city-taxpayers. Thanks Bobby for posting also
re:Scheduling for Aaron Foster at http://sharon-stateofminnesota.blogspot.com
and for www.givemeliberty.org and
December 7, 2007
Update: WTP v. U.S.
Supreme Court Schedule Set
In the last Update, we reported the Supreme Court of the United States assigned Docket Numbers to our Petition for Writ of Certiorari (07-680 for the Petition by attorney Mark Lane, and 07-681 for the Petition by Bob Schulz).
We also reported the Government then had the choice of filing a Response to our Petition or a waiver of its right to file a Response.
This week, the Government filed a WAIVER, surrendering its right to file a Response to the Petitions.
1:14 PM, your IQ is showing...
The police cheif is an honorable man. He is not a crook.
Some of you posters here belong in a mental institution.
7:33 if the chief was so honorable he would not allow himself to get in these situations! Slumlord now and lawsuits for the treatment of officers you call that honarable?
Engel & Klrscher, PllC
November 21, 2007
Louise Toscano Seeba
Assistant City Attorney
750 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, Minnesota 55102
RE: Steinhauser, ct al., vs, City of St. Paul, et al;
Harrilal, et al., vs, Magner, ct al; and
Gallagher, ct al., vs. Magner, et al.
Dear Louise:
John and I are responding to your recent letters.
VIA FAX (651-266-8787)
AND US MAIL
The issues surrounding the Sandberg email, the documents brought to the Gallagher and
Collins depositions, and the documents scanned by Matt and Mr. Steinhauser since
approximately March of 2007, have been dealt with in Matt's October 30, 2007, cover
letter to you along with the hand delivery hard copies of the Sandberg email and 7 disks
of GAL and STP bates numbers.
Claimed Attorney-Client Documents
Regarding your October 2, 2007, letter to John concerning the "attorney client" claimed
documents, John is in the process of locating for return to you the documents numbered
Bates 045021•045023 and 045162-045168.
Extension ofCourt's Pre-Trial Scheduling Order
We will now address the issue of extending the Court's Pre-trial Scheduling Order that is
the subject of your motion to extend same. We did talk numerous times about an extension over the past two and half months, but it was with the understanding that the
email-electronic document production would be completed and the other documents
would beproduced in a timely fashion so that Plaintiffs could start review of same.
My email to you on October 16,
2007, suggested that we contact Magistrate Nelson to
informally discuss the time period of an extension without you having to make a formal motion since we all agreed that an extension was necessary, but we could not agree to any specific time period.
EXHIBIT A
Louise Toscano Seeba
November 21,2007
Page2 of8
Until you and your clients finally produce all the relevant and clearly discoverable
documents, including the emails-electronic documents, the City's PHA documents and
the NHPI, Fire and LIEP files for the "problem property" addresses, we continue to agree
that there needs to be an extension of the current timeIine for summary judgment filing
and hearing in order to complete Plaintiffs' review of that discoverable documentation.
Here are just four examples of why it is impossible for us to suggest or agree to any
specific extension period when you and your clients are responsible for the production of
the relevant documents and all of those projects are now only partially completed.
Emails and other electronic documents (Uemails")
According to you, as of the middle of October, only 40 of the 79 email boxes have been
restored. We have correspondence between us from early May 2007 that indicates that
emails and disaster recover tapes were available - that was 6 months ago. Why have
only 40 out of 79 email boxes been restored at this point? This extraordinary delay in
completing the entire project leads us to conclude that your clients are intentionally
delaying the production of the emails. Your client's Information Services Department
should have been able to provide each employee with the individual email boxes within a
very short period of time. Defendants and other key players should have started their
review in April 2007. 40 of the employees have completed the task - why haven't the
others completed their review and selection of emails to provide to Plaintiffs? When did
each of the employees receive access to their individual email data?
The continued delay is further evidence of the actual prejudice to Plaintiffs from
Defendants' failure to place a "litigation hold" on their emails and those of other "key
players" early on in the Steinhauser litigation and from the subsequent failure to produce
those emails during the discovery period that ended March 2, 2007. Regarding your
comment contained in the last paragraph of your October 19,2007, letter, we believe that
the 79 individuals we selected were well within the definition of "key players" that
Magistrate Nelson alluded to in oral argument on August 20,2007, when she mentioned
the City's duty to place a litigation hold on the emails of key players from the
commencementof the litigation.
NHPI. Fire and LIEf ~ode enforcement files for "problem properties"
Another example of the delay by your clients is found in the way your clients are
handling production of the code enforcement files for the "problem properties". We
received your letter of November 9, 2007 wherein you stated that NHPI files (for
problem properties) that we requested in John's October 3, 2007 letter are ready for our
review. As you know, we also requested the Fire and LIEP code enforcement files for
those same properties, the properties designated as "problem properties" by the City and
others connected to and working together with the City. Your letter fails to refer to the
Fire and L1EP files. Why are those files also not ready for our review? We want to
complete the review of all of those requested files during one or two days at the offices
AlE IKXHIBIT A
Louise ToscanoSeeba
November 21, 2007
Page 3 of8
you designate instead of havingto repeatedly travel to St. Paul and conduct multiple days
of review. Please inform us as to whenand wherewe should meet to start the inspection
and scanning processof the NHPI, Fireand LIEP files for these "problemproperties".
City do£umenfs rel@tcd to PHA
Thirdly, you and your clients have yet to produce all of the relevant written agreements
and related documents between the City and PHA related to all aspects of their special
relationship. The Magistrate's Order of November 13,2007, does note that you and your
clients havea duty to produce the documents that the City has related to PHA.
Moreover, the documents that we have been seeking from you and your client are
actually "city" documents, not "PHA's documents". The City is a party to the contracts
between the City and PHA, so the documents evidencing those agreements are "City
documents" and must be produced.
Once again, we have no control over how long it will actually take you and your clients
to finally produce these PHA documents from the City's files. These documents should
have been produced during the discovery period but were not and this failure has
prejudiced the Plaintiffs in a similar way to the failure to produce the other relevant
documents. The prejudice has been exacerbated by the continued delay, and refusal to
produce these important documents.
The sum total of documents produced by you and your clients in response to Plaintiffs'
request for all documents related to the relationship and agreements betweenthe City and
PHA has been your recent production of the contract for 2005 and for 2007 related to
special police servicesprovidedby the City to PHA.
Your recent letter implies that Plaintiffs can obtain all the relevant "PHA-City"
documents by seeking those documents from PHA. PHA is not a party to this litigation
and Defendants may not avoid their independent duty to produceall relevant documents.
You have provided no explanation to us as to why you and your clients have not
produced the special policing contmcts for the other years in question. Considering that
this special policing contmct has been renewed annually since 1991, this surely is a
significant program between the City and PHA. The cooperation between the City and
PIIA on issues related to disturbing tenant and guest behavior, including criminal
activity, relates directly to Plaintiffs' claims herein. Plaintiffs have consistently claimed
that Defendants use heavy-handed code enforcement operations against Plaintiffs and
innocent tenants to placate racist neighbors and to address alleged tenant and guest
behaviors with the goal of forcing Plaintiffs and others from the low-income rental
market; at the same time Defendants provided special services, protections and benefits
to PHA who has experienced, and continues to experience, the same or worst tenant
behavior problems.
A IE IRXHIBIT A
Louise Toscano Seeba
November 21,2007
Page4 or8
The Minutes of the City Council refer to these annual contracts between the Police
Department and PIIA. According to these special policing contracts, the City expends
significant sums of money on an annual basis to provide these special services to PHA.
You have not produced the written regulations, procedures, summaries, reports and other
documents related to this annual program. You have not produced documents that show
how the City is paying for these services and the costs related to these programs. These
types of documents all fall within the scope of our request for all City documents relating
to PIIA.
The special policing contracts represented by the 2005 and 2007 contracts you provided
to us, are not the only agreements that can be classified as documents showing
cooperation between the City of St. Paul and PI-IA. For example, PIIA and the City have
an agreement under the PIIA's Officer in Residence Program that allows City police
officers to reside in PHA properties and to park City police cars at PIfA properties for
criminal deterrent purposes. Again, these agreements include the City as a party and
therefore all the documents related to that program in the City's possession arc "City
documents"and should be produced by you and your clients.
Other examples of the cooperative agreements between the City and PIIA include the
City's agreement not to inspect the interiors of PHA's single family and duplex
properties when City and PHA officials agree that all the housing codes apply to said
PHA properties. The essence of this agreement is that PIIA is allowed to operate its
single family and duplex rental properties outside of City code enforcement oversight.
Other examples of the relationship of cooperation between the City and PHA include the
City agreement to allow PIlA to defer maintenance and capital improvements on PIIA
rental properties. Fire Prevention code enforcement files refer to these agreements. All
the documents related to these areas of cooperation have not been produced by your
clients.
These arc but a few of the subject areas of our document request that relate to the "cozy"
relationship between the City and PIIA over the years. You ali counsel have an
independent duty to insure that your clients are producing all of the documents that relate
to its relationship with PHA, as they clearly fall within our request for such documents.
Once again, we ask that you and your clients finally produce copies of all documents
related to the relationship between PHA and the City.
Alternative sources to TIS" reports destroyed
We still nrc waiting for a response to our question to you concerning a possible
alternative source to the City's paper copies of the 15,000 to 18,000 TISH reports for the
years 2001 through 2003 that were destroyed by the City during this litigation. As early
as the fall of 2004, and continuing thereafter, you and your clients admitted in discovery
requests and responses that the TISH reports were relevant to the claims or defenses of
A IE IJ(XHIBIT A
louise Toscano Seeba
November 21,2007
Page 50r8
the parties. You have ignored our requests for information from you that would answer
the important questions concerning the destruction of these relevant inspection reports
including why a "litigation hold" was not placed on these inspection reports and who
authorized said destruction,
The 2001•2003 TISH inspection reports included inspection results for the interiors and
exteriors or single family and duplex structures located in many of the same
neighborhoods of Plaintiffs' single family and duplex rental properties. Plaintiffs' rental
properties were selectively targeted during 2002 through 2005 and continuing thereafter,
for oppressive code enforcement treatment on the basis of Defendants' claim that
Plaintiffs' rental properties were "substandard" and in many cases that Plaintiffs' were
repeat violators of the housing codes.
From the Plaintiffs' standpoint, it is not surprising that the 2004 and later TISH reports
demonstrate that when Plaintiffs sold their rental properties, neighboring properties were
in no different physical condition than Plaintiffs' properties. The question that follows is
whether review of the 2001-2003 TISH reports would have supported the same
conclusion: that properties surrounding Plaintiffs' low-income, "protected class"
occupied, rental properties were no different from Plaintiffs' properties when considering
the nature and extent of code violations, and therefore targeting of Plaintiffs and their
tenants wns for discriminatory purposes. Your client's destruction of the 2001-2003
TISH reports leads us to the natural conclusion that those reports would have been
adverse to your Clients' interest in this litigation and would have in fact supported
Plaintiffs' claim of intentional discrimination and that is why those reports were
destroyed.
In keeping with Magistrate Nelson's ruling on the issue of "prejudice" from spoliation,
we once again ask that you finally respond to our question as to whether the destroyed
documents can be recreated either through backup copies or from evaluator's personal
records.
Does the City currently have authority to require all licensed TISH evaluators to provide
the City with another copy of the 2001•2003 TISH reports that each evaluator may have
maintained in their files? We understand that the evaluators arc only required to maintain
TISH inspection reports for a period of three years. If the evaluators would have kept
reports from 2001-2003, we will ask the Court to require your clients to pay for the cost
of acquiring and producing those reports.
Finally, regarding the Court's order that Plaintiff's seek the TISH reports from TISH
inspectors themselves, with the City paying the costs of obtaining those documents,
please forward to us immediately an up to date list of the names, business addresses, and
telephone numbers of all TISH inspectors who were licensed between 2001•2003, so that
we can start the subpoena process to obtain the TISH reports. Moreover, we will request
that the Court appoint a special master at the cost of your clients to review those reports
obtained from the licensed evaluators to determine the authenticity of the reports, and the
success of the City'S attempts to recreate the City'S original TISH files for 2001•2003.
A IE IRXHIBIT A
louin ToscanoSeeba
November 21, 2007
Page 6 of8
Reservation of Plaintiffs' Objection to Email Production Process
Once again, we reserve Plaintiffs continued objection to the actual process you and your
clients have undertaken to cull out from the backup tapes the actual cmails your clients
will ultimately produce for our review. This process, as we understand it, basically allows
each Defendant and other designated employees to review their own emails and select the
emails they determine should be produced to Plaintiffs.
You will recall, we agreed to this method of email selection back in Murch and April of
2001, based upon your statements to us that the Defendants did not have any cmails for
the time period prior to December 2005. One can certainly understand the reluctance by
your clients and your office to produce emails in this litigation similar to the shocking
emails in 2004 to and from Councilmember Lantry, her staff and the white neighbors
adjacent to the rental property located at 321 Dates Avenue occupied by Black Americans
at the time that property was targeted for special code enforcement attention. Most of the
Plaintiffs claims relate to time periods between 2002 and 2005.
After Matt's letter dated May 1,2001, to you confirming your representations that cmails
did not exist prior to December 2005, we forwarded to you two subsequent letters in June
2007, confirming that you had informed us that the emails before December 2005 had
been destroyed and that the only emails available from you and your clients were for
December 2005 and forward. The first time you notified us that emails were in fact
available for the time period prior to December 2005 was in your formal response to
Plaintiffs' motion for sanctions filed a week before the August 20, 2007, hearing.
Had we known that cmails did in fact exist for periods prior to December of 2005,
Plaintiffs certainly would not have agreed to your proposed system of determining which
emails to produce, an email selection process which you stated was the only option for
production of same.
After we discovered the failure of you and your clients to place a "litigation hold" on the
emails of defendants and other key players, your clients' destruction of 15,000-18,000
Truth in Sale of Housing reports for 200 I, 2002 and 2003 during this litigation, your
clients' failure to produce all relevant PHA documents, and failure to produce the
"Problem Property 2000 Progress Report," we learned of the misrepresentations made by
you and your clients concerning the nature and extent of the actual emails that could be
produced as being those from December 2005 and thereafter.
Based upon the history of your clients' destruction of 15,000.18,000 relevant TISH
reports during this litigation, refusals to produce documents, failures to produce key
evidence that was available only to the City, its officials and employees, the
misrepresentations concerning the existence of key email documentation, the continued
delays in producing the requested documents, the lack of response to many of our
important questions related to spoliation, prejudice and our attempts to ameliorate the
prejudicial effects of your Clients' spoliation, we have naturally reached the conclusion
A IE IRXHIBIT A
Louise Toscano Seeba
November n, 2007
Page 7 of8
that your clients are continuing their illegal conduct with more of the same in this
litigation.
The last issue concems the proposed stipulation that would allow review of the
unredacted emails that your office will produce for review by Plaintiffs' attorneys. Your
proposals have consistently provided for "attorney eyes" only review of those emails,
The Magistrate's Order of November 13, 2007, requires this same restriction. We
certainly intend to appeal that holding along with other determinations made by the
Magistrate.
Section 13.03 of the MinnesotaData Pmctices Act, provides that the Court may fashion a
protective order concerning "data that is not public" so that the attorneys and parties may
utilizesuch data in litigation. The data must mect the civil procedural rules requirements
of relevance and counsel and the Court has agreed that the Plaintiffs' email request is
reasonably calculated to lead to discovery of relevant evidence.
We have offered to reduce the number of Plaintiffs that would be included in the
individuals authorized to review the data undera protective order with provisionson nondisclosure,
but you have not agreed to our proposal. I am sure you arc aware of the
tremendous amount of time that will be required to review the large volume of raw email
data that you and your client have agreed to finally produce.
If the emails of Defendants and other key players had been placed "on hold" at the
commencement of the Steinhauser litigation or even sooner at the time your clients
received notice of Mr. Steinhauser's claims, the volume of such emails compared to the
volume of emails now to be made available would be considerably less burdensome for
Plaintiffs to review.
Additionally, if the "litigation hold" had been in place, your office would have been able
to review said emails for redaction purposes long ago, and would have produced those
redacted emails during the discovery period for usc in depositions and otherwise.
Redacted emails produced to the Plaintiffs through that process in discovery would have
beenavailable for review by each Plaintiffresulting in far less fees and costs to Plaintiffs.
Plaintiffs are prejudiced by your production of emails in an un-redacted form at this late
stage of the litigation. Considering the failure to place a "litigation hold" on the relevant
emails, and the repeated delays, allowing you and your clients even further time to
conduct the data practices redaction process on the mass volume of emails would further
exacerbate that prejudice; further prejudice would result if Plaintiffs arc not allowed to
assist their attorneys in the reviewof the massof material.
Weare not refusing your request for a meet and confer, nor arc we refusing to set a date
for the court orderedmeet and confer. Wecontinue to be agreeable to an extensionof the
deadlines but it is our position that the Magistrate should be the one that grants the actual
period of that extension based upon your assurances of producing the remaining
A IE If(XHIBIT A
louise ToscanoSeeba
November 21,2007
Page 8 of8
documents within a specific timeline. We would like to schedule a meet and confer
telephone conference with you in the morning on Monday, November 26, 2007. In
addition, we suggest that in lieu of the December 10,2007, hearing, that a tele-conference
be arranged with the Magistrate to discuss the issues raised by the remaining discovery
and her court Order issued on November 13, 2007. As such, there would be no need for
you to file the remaining formal motion papers (memorandum of law, affidavit and
exhibits) which would complete your motion filing, and we would not object to those
documents not being filed or changing the motion date due to the tele-conference.
Very truly yours,
AASE, ENGEL & KIRSCHER~PLC
Matthew A. Engel
SHOEMAKER & SHOEMAKER, P.L.IJ'C,
sf John R. Shoemaker
John R. Shoemaker, Esq.
A IE IKXHIBIT A
From what I've read so far this city attorney looks to be pretty slippery to me.
Maybe I'll come to the court hearing and size this city attorney Louie up for myself. He sounds like a real piece of work!
Wow, the city should have just shut up and produced the documents in the first place. All this additional work is unnecessary, and tends to cloud the real issues involving actions by inspectors.
That's the whole idea. When you have a case and you are in the right, you go to court and prove it up. When you are the guy that's in the wrong, then you try and delay delay delay, call names and disparage characters, destroy evidence, etc. If the city has such a good case why don't they go for a Summary Judgement and have these guys thrown out of court? Could it be because the city is in the worng and they know it?
Come on kids here we go again. The plaintiffs are saying that the I.T. guys that the City has recreating all of the emails every sent to or from 79 City employees aren't working fast enough for them. They are also demanding every report from every cop who has ever made a report or taken an action on PHA property.
They are back to the original arguement that somehow the City went after the landlords to make money for the nonprofit PHA which is not an official part of the City. So, they are now saying that the City needs to spell out every dime spent at PHA over the last 10-15 years or so.
Its a lot of bullshit and shows how these guys are grasping at straws. I said a month or two ago that they appear to be asking for enough crap hoping that the City can't recreate it and maybe they will get some cash out of the City's not being able to produce the data.
They have yet to show that there was anything to their claim. They are still saying that the reason why they have no evidence for what they claim is that the City hasn't produced it.
Its a bad joke.
JMONTOMEPPOF
Chuck Repke
Chuck,
Once again you have it partly right, but not the important part. It is a bad joke. The dipshit inspectors laughlingly think they can destroy peoples' lives, families, and force suicides and deaths from stressors, and get away with it scot free. Then they destroy evidence and twist words to cover it up. It was the same way with the Nazis.
Soon some of them will be going to prison, and the laughter will stop.
Hi All,
There are many copy errors.
• A E K Aase, Engel & Klrscher, PllC
November 21, 2007
Louise Toscano Seeba
Assistant City Attorney
750 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, Minnesota 55102
RE: Steinhauser, ct al., vs, City of St. Paul, et al;
Harrilal, et al., vs, Magner, ct al; and
Gallagher, ct al., vs. Magner, et al.
Dear Louise:
John and I are responding to your recent letters.
VIA FAX (651-266-8787)
AND US MAIL
The issues surrounding the Sandberg email, the documents brought to the Gallagher and
Collins depositions, and the documents scanned by Matt and Mr. Steinhauser since
approximately March of 2007, have been dealt with in Matt's October 30, 2007, cover
letter to you along with the hand delivery hard copies of the Sandberg email and 7 disks
ofGAL and STP bates numbers.
Claimed Attorney-Client Documents
Regarding your October 2, 2007, letter to John concerning the "attorney client" claimed
documents, John is in the process of locating for return to you the documents numbered
Bates 045021•045023 and 045162-045168.
Extension ofCourt's Pre-Trial Scheduling Order
We will now address the issue of extending the Court's Pre-trial Scheduling Order that is
the subject of your motion to extend same. We did talk numerous times about an
extension over the past two and half months, but it was with the understanding that the
email-electronic document production would be completed and the other documents
would beproduced in a timely fashion so that Plaintiffs could start review of same.
My email to you on October 16, 2007, suggested that we contact Magistrate Nelson to
informally discuss the time period of an extension without you having to make a formal
motion since we all agreed that an extension was necessary, but we could not agree to
any specific time period.
EXHIBIT A
LouiseToscano Seeba
November 21,2007
Page2 of8
Until you and your clients finally produce all the relevant and clearly discoverable
documents, including the emails-electronic documents, the City's PHA documents and
the NHPI, Fire and LIEP files for the "problem property" addresses, we continue to agree
that there needs to be an extension of the current timeIine for summary judgment filing
and hearing in order to complete Plaintiffs' review of that discoverable documentation.
Here are just four examples of why it is impossible for us to suggest or agree to any
specific extension period when you and your clients are responsible for the production of
the relevant documents and all of those projects are now only partially completed.
Emails and other electronic documents (Uemails")
According to you, as of the middle of October, only 40 of the 79 email boxes have been
restored. We have correspondence between us from early May 2007 that indicates that
emails and disaster recover tapes were available - that was 6 months ago. Why have
only 40 out of 79 email boxes been restored at this point? This extraordinary delay in
completing the entire project leads us to conclude that your clients are intentionally
delaying the production of the emails. Your client's Information Services Department
should have been able to provide each employee with the individual email boxes within a
very short period of time. Defendants and other key players should have started their
review in April 2007. 40 of the employees have completed the task - why haven't the
others completed their review and selection of emails to provide to Plaintiffs? When did
each of the employees receive access to their individual email data?
The continued delay is further evidence of the actual prejudice to Plaintiffs from
Defendants' failure to place a "litigation hold" on their emails and those of other "key
players" early on in the Steinhauser litigation and from the subsequent failure to produce
those emails during the discovery period that ended March 2, 2007. Regarding your
comment contained in the last paragraph of your October 19,2007, letter, we believe that
the 79 individuals we selected were well within the definition of "key players" that
Magistrate Nelson alluded to in oral argument on August 20,2007, when she mentioned
the City's duty to place a litigation hold on the emails of key players from the
commencementof the litigation.
NHPI. Fire and LIEf ~ode enforcement files for "problem properties"
Another example of the delay by your clients is found in the way your clients are
handling production of the code enforcement files for the "problem properties". We
received your letter of November 9, 2007 wherein you stated that NHPI files (for
problem properties) that we requested in John's October 3, 2007 letter are ready for our
review. As you know, we also requested the Fire and LIEP code enforcement files for
those same properties, the properties designated as "problem properties" by the City and
others connected to and working together with the City. Your letter fails to refer to the
Fire and L1EP files. Why are those files also not ready for our review? We want to
complete the review of all of those requested files during one or two days at the offices
AlE IKXHIBIT A
Louise ToscanoSeeba
November 21, 2007
Page 3 of8
you designate instead of havingto repeatedly travel to St. Paul and conduct multiple days
of review. Please inform us as to whenand wherewe should meet to start the inspection
and scanning processof the NHPI, Fireand LIEP files for these "problemproperties".
City do£umenfs rel@tcd to PHA
Thirdly, you and your clients have yet to produce all of the relevant written agreements
and related documents between the City and PHA related to all aspects of their special
relationship. The Magistrate's Order of November 13,2007, does note that you and your
clients havea duty to produce the documents that the City has related to PHA.
Moreover, the documents that we have been seeking from you and your client are
actually "city" documents, not "PHA's documents". The City is a party to the contracts
between the City and PHA, so the documents evidencing those agreements are "City
documents" and must be produced.
Once again, we have no control over how long it will actually take you and your clients
to finally produce these PHA documents from the City's files. These documents should
have been produced during the discovery period but were not and this failure has
prejudiced the Plaintiffs in a similar way to the failure to produce the other relevant
documents. The prejudice has been exacerbated by the continued delay, and refusal to
produce these important documents.
The sum total of documents produced by you and your clients in response to Plaintiffs'
request for all documents related to the relationship and agreements betweenthe City and
PHA has been your recent production of the contract for 2005 and for 2007 related to
special police servicesprovidedby the City to PHA.
Your recent letter implies that Plaintiffs can obtain all the relevant "PHA-City"
documents by seeking those documents from PHA. PHA is not a party to this litigation
and Defendants may not avoid their independent duty to produceall relevant documents.
You have provided no explanation to us as to why you and your clients have not
produced the special policing contmcts for the other years in question. Considering that
this special policing contmct has been renewed annually since 1991, this surely is a
significant program between the City and PHA. The cooperation between the City and
PIIA on issues related to disturbing tenant and guest behavior, including criminal
activity, relates directly to Plaintiffs' claims herein. Plaintiffs have consistently claimed
that Defendants use heavy-handed code enforcement operations against Plaintiffs and
innocent tenants to placate racist neighbors and to address alleged tenant and guest
behaviors with the goal of forcing Plaintiffs and others from the low-income rental
market; at the same time Defendants provided special services, protections and benefits
to PHA who has experienced, and continues to experience, the same or worst tenant
behavior problems.
A IE IRXHIBIT A
Louise Toscano Seeba
November 21,2007
Page4 or8
The Minutes of the City Council refer to these annual contracts between the Police
Department and PIIA. According to these special policing contracts, the City expends
significant sums of money on an annual basis to provide these special services to PHA.
You have not produced the written regulations, procedures, summaries, reports and other
documents related to this annual program. You have not produced documents that show
how the City is paying for these services and the costs related to these programs. These
types of documents all fall within the scope of our request for all City documents relating
to PIIA.
The special policing contracts represented by the 2005 and 2007 contracts you provided
to us, are not the only agreements that can be classified as documents showing
cooperation between the City of St. Paul and PI-IA. For example, PIIA and the City have
an agreement under the PIIA's Officer in Residence Program that allows City police
officers to reside in PHA properties and to park City police cars at PIfA properties for
criminal deterrent purposes. Again, these agreements include the City as a party and
therefore all the documents related to that program in the City's possession arc "City
documents"and should be produced by you and your clients.
Other examples of the cooperative agreements between the City and PIIA include the
City's agreement not to inspect the interiors of PHA's single family and duplex
properties when City and PHA officials agree that all the housing codes apply to said
PHA properties. The essence of this agreement is that PIIA is allowed to operate its
single family and duplex rental properties outside of City code enforcement oversight.
Other examples of the relationship of cooperation between the City and PHA include the
City agreement to allow PIlA to defer maintenance and capital improvements on PIIA
rental properties. Fire Prevention code enforcement files refer to these agreements. All
the documents related to these areas of cooperation have not been produced by your
clients.
These arc but a few of the subject areas of our document request that relate to the "cozy"
relationship between the City and PIIA over the years. You ali counsel have an
independent duty to insure that your clients are producing all of the documents that relate
to its relationship with PHA, as they clearly fall within our request for such documents.
Once again, we ask that you and your clients finally produce copies of all documents
related to the relationship between PHA and the City.
Alternative sources to TIS" reports destroyed
We still nrc waiting for a response to our question to you concerning a possible
alternative source to the City's paper copies of the 15,000 to 18,000 TISH reports for the
years 2001 through 2003 that were destroyed by the City during this litigation. As early
as the fall of 2004, and continuing thereafter, you and your clients admitted in discovery
requests and responses that the TISH reports were relevant to the claims or defenses of
A IE IJ(XHIBIT A
louise Toscano Seeba
November 21,2007
Page 50r8
the parties. You have ignored our requests for information from you that would answer
the important questions concerning the destruction of these relevant inspection reports
including why a "litigation hold" was not placed on these inspection reports and who
authorized said destruction,
The 2001•2003 TISH inspection reports included inspection results for the interiors and
exteriors or single family and duplex structures located in many of the same
neighborhoods of Plaintiffs' single family and duplex rental properties. Plaintiffs' rental
properties were selectively targeted during 2002 through 2005 and continuing thereafter,
for oppressive code enforcement treatment on the basis of Defendants' claim that
Plaintiffs' rental properties were "substandard" and in many cases that Plaintiffs' were
repeat violators of the housing codes.
From the Plaintiffs' standpoint, it is not surprising that the 2004 and later TISH reports
demonstrate that when Plaintiffs sold their rental properties, neighboring properties were
in no different physical condition than Plaintiffs' properties. The question that follows is
whether review of the 2001-2003 TISH reports would have supported the same
conclusion: that properties surrounding Plaintiffs' low-income, "protected class"
occupied, rental properties were no different from Plaintiffs' properties when considering
the nature and extent of code violations, and therefore targeting of Plaintiffs and their
tenants wns for discriminatory purposes. Your client's destruction of the 2001-2003
TISH reports leads us to the natural conclusion that those reports would have been
adverse to your Clients' interest in this litigation and would have in fact supported
Plaintiffs' claim of intentional discrimination and that is why those reports were
destroyed.
In keeping with Magistrate Nelson's ruling on the issue of "prejudice" from spoliation,
we once again ask that you finally respond to our question as to whether the destroyed
documents can be recreated either through backup copies or from evaluator's personal
records.
Does the City currently have authority to require all licensed TISH evaluators to provide
the City with another copy of the 2001•2003 TISH reports that each evaluator may have
maintained in their files? We understand that the evaluators arc only required to maintain
TISH inspection reports for a period of three years. If the evaluators would have kept
reports from 2001-2003, we will ask the Court to require your clients to pay for the cost
of acquiring and producing those reports.
Finally, regarding the Court's order that Plaintiff's seek the TISH reports from TISH
inspectors themselves, with the City paying the costs of obtaining those documents,
please forward to us immediately an up to date list of the names, business addresses, and
telephone numbers of all TISH inspectors who were licensed between 2001•2003, so that
we can start the subpoena process to obtain the TISH reports. Moreover, we will request
that the Court appoint a special master at the cost of your clients to review those reports
obtained from the licensed evaluators to determine the authenticity of the reports, and the
success of the City'S attempts to recreate the City'S original TISH files for 2001•2003.
A IE IRXHIBIT A
louin ToscanoSeeba
November 21, 2007
Page 6 of8
Reservation of Plaintiffs' Objection to Email Production Process
Once again, we reserve Plaintiffs continued objection to the actual process you and your
clients have undertaken to cull out from the backup tapes the actual cmails your clients
will ultimately produce for our review. This process, as we understand it, basically allows
each Defendant and other designated employees to review their own emails and select the
emails they determine should be produced to Plaintiffs.
You will recall, we agreed to this method of email selection back in Murch and April of
2001, based upon your statements to us that the Defendants did not have any cmails for
the time period prior to December 2005. One can certainly understand the reluctance by
your clients and your office to produce emails in this litigation similar to the shocking
emails in 2004 to and from Councilmember Lantry, her staff and the white neighbors
adjacent to the rental property located at 321 Dates Avenue occupied by Black Americans
at the time that property was targeted for special code enforcement attention. Most of the
Plaintiffs claims relate to time periods between 2002 and 2005.
After Matt's letter dated May 1,2001, to you confirming your representations that cmails
did not exist prior to December 2005, we forwarded to you two subsequent letters in June
2007, confirming that you had informed us that the emails before December 2005 had
been destroyed and that the only emails available from you and your clients were for
December 2005 and forward. The first time you notified us that emails were in fact
available for the time period prior to December 2005 was in your formal response to
Plaintiffs' motion for sanctions filed a week before the August 20, 2007, hearing.
Had we known that cmails did in fact exist for periods prior to December of 2005,
Plaintiffs certainly would not have agreed to your proposed system of determining which
emails to produce, an email selection process which you stated was the only option for
production of same.
After we discovered the failure of you and your clients to place a "litigation hold" on the
emails of defendants and other key players, your clients' destruction of 15,000-18,000
Truth in Sale of Housing reports for 200 I, 2002 and 2003 during this litigation, your
clients' failure to produce all relevant PHA documents, and failure to produce the
"Problem Property 2000 Progress Report," we learned of the misrepresentations made by
you and your clients concerning the nature and extent of the actual emails that could be
produced as being those from December 2005 and thereafter.
Based upon the history of your clients' destruction of 15,000.18,000 relevant TISH
reports during this litigation, refusals to produce documents, failures to produce key
evidence that was available only to the City, its officials and employees, the
misrepresentations concerning the existence of key email documentation, the continued
delays in producing the requested documents, the lack of response to many of our
important questions related to spoliation, prejudice and our attempts to ameliorate the
prejudicial effects of your Clients' spoliation, we have naturally reached the conclusion
A IE IRXHIBIT A
Louise Toscano Seeba
November n, 2007
Page 7 of8
that your clients are continuing their illegal conduct with more of the same in this
litigation.
The last issue concems the proposed stipulation that would allow review of the
unredacted emails that your office will produce for review by Plaintiffs' attorneys. Your
proposals have consistently provided for "attorney eyes" only review of those emails,
The Magistrate's Order of November 13, 2007, requires this same restriction. We
certainly intend to appeal that holding along with other determinations made by the
Magistrate.
Section 13.03 of the MinnesotaData Pmctices Act, provides that the Court may fashion a
protective order concerning "data that is not public" so that the attorneys and parties may
utilizesuch data in litigation. The data must mect the civil procedural rules requirements
of relevance and counsel and the Court has agreed that the Plaintiffs' email request is
reasonably calculated to lead to discovery of relevant evidence.
We have offered to reduce the number of Plaintiffs that would be included in the
individuals authorized to review the data undera protective order with provisionson nondisclosure,
but you have not agreed to our proposal. I am sure you arc aware of the
tremendous amount of time that will be required to review the large volume of raw email
data that you and your client have agreed to finally produce.
If the emails of Defendants and other key players had been placed "on hold" at the
commencement of the Steinhauser litigation or even sooner at the time your clients
received notice of Mr. Steinhauser's claims, the volume of such emails compared to the
volume of emails now to be made available would be considerably less burdensome for
Plaintiffs to review.
Additionally, if the "litigation hold" had been in place, your office would have been able
to review said emails for redaction purposes long ago, and would have produced those
redacted emails during the discovery period for usc in depositions and otherwise.
Redacted emails produced to the Plaintiffs through that process in discovery would have
beenavailable for review by each Plaintiffresulting in far less fees and costs to Plaintiffs.
Plaintiffs are prejudiced by your production of emails in an un-redacted form at this late
stage of the litigation. Considering the failure to place a "litigation hold" on the relevant
emails, and the repeated delays, allowing you and your clients even further time to
conduct the data practices redaction process on the mass volume of emails would further
exacerbate that prejudice; further prejudice would result if Plaintiffs arc not allowed to
assist their attorneys in the reviewof the massof material.
Weare not refusing your request for a meet and confer, nor arc we refusing to set a date
for the court orderedmeet and confer. Wecontinue to be agreeable to an extensionof the
deadlines but it is our position that the Magistrate should be the one that grants the actual
period of that extension based upon your assurances of producing the remaining
A IE If(XHIBIT A
louise ToscanoSeeba
November 21,2007
Page 8 of8
documents within a specific timeline. We would like to schedule a meet and confer
telephone conference with you in the morning on Monday, November 26, 2007. In
addition, we suggest that in lieu of the December 10,2007, hearing, that a tele-conference
be arranged with the Magistrate to discuss the issues raised by the remaining discovery
and her court Order issued on November 13, 2007. As such, there would be no need for
you to file the remaining formal motion papers (memorandum of law, affidavit and
exhibits) which would complete your motion filing, and we would not object to those
documents not being filed or changing the motion date due to the tele-conference.
Very truly yours,
AASE, ENGEL & KIRSCHER~PLC MatthewA. Engel
Matthew A. Engel
SHOEMAKER & SHOEMAKER, P.L.IJ'C,
sf John R. Shoemaker
John R. Shoemaker, Esq.
A IE IKXHIBIT A
Aase. Engel ft Klrscher. PLLC
November 30, 2007
Louise Toscano Sceba
Assistant City Attorney
750 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, Minnesota 55102
RE: Steinhauser, ct aI., vs. City of St. Paul, et al;
Harrilal, et al., YS. Magner, et ali and
Gallagher, et at, YS. Magner, et al.
Dear Louise:
VIA FAX (651-266-8787)
AND US MAIL
It was my understanding from our meet and confer tcleconference on Monday that you
were going to check with your IT department to get an update on the progress of the
email project. We have not henrd from you yet. How many email boxes have been
restored? Have you completed your review for attorncy-elient privileged
commlUucations? Out ofthe 40 email boxes that have been restored, how many have you
reviewed for attorney-client privileged documents? Once all of the email boxes have
been restored, how soon will you conduct the attorney-client privileged information
search before giving us the unredactcd emails?
Again, pursuant to our meet and confer, John and I were agreeable to an extension on the
dispositive motion filing deadline based upon your status report on the email project - we
would be willing to provide an extra month of time (until December 31) for you to
complete the email project - assuming it had made progress from the 40 completed email
boxes. Knowing we would have the emails by a certain date, we could agree to the
extension on the dispositive motion filing deadline.
We look forward to hearing from you soon. Please call with any questions.
Very truly yours,
Matthew A. Engel
EXHIBIT C
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