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Wednesday, March 05, 2008

Saint Paul RICO Update/ "The filthy bigots and their defenders". Attorney Shoemaker takes swing at City of Saint Paul

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There maybe copy errors folks.

UNITED STATES DISTRICT COURT
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.
6
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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.
7
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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),
8
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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.
9
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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”.
10
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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.
11
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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.
12
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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.
13
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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”.
14
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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.
15
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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.
16
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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.
17
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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).
18
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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.
19
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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.
20
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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.
21
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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.
22
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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.
23
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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.
24
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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.
26
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 26 of 44
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.
27
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 27 of 44
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.
28
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 28 of 44
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.
29
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 29 of 44
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.
30
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 30 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 31 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 32 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 33 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 34 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 35 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 36 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 37 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 38 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 39 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 40 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 41 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 42 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 43 of 44
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
Case 0:04-cv-02632-JNE-SRN Document 183 Filed 03/05/2008 Page 44 of 44

7:32 PM  
Anonymous Anonymous said...

Take your time Repke.You might want to wake your buddy Dave up.Theres more on the federal court electronic filing.Bob are you going to put up Engels?

WOW.

8:18 PM  
Anonymous Anonymous said...

We should have recall on the city council.

The newspaper and tv reporter

Have recevied copy of this stuff.


A bad day in St.Paul.

chuck you need to get real job soon.

8:40 PM  
Anonymous Anonymous said...

Repke
You better go wake up Gloria
The shit is about to hit the fan!
Are you as _ucking dumb as I think you are???
Call Dave or are you two idiots playing house tonight?

8:44 PM  
Anonymous Henry said...

You just have to love it when the truth hits the fan. I see stripes - like those prisoners wear and the names of those wearing them are in these pages. WOW.

8:49 PM  
Anonymous Anonymous said...

Chuck is this the evidence you wanted?I was staying away and got an email about the info.This is unbelievable.I think the city has their hands full.These attorneys should be applauded.




Sid

8:51 PM  
Anonymous Anonymous said...

I just picture Lantry with that shit eating grin on her face she always has on in the council chambers.I'd love to see what it looks like tomorrow when she hits the office.


Eric Mitchell what do you say about this city now?

8:55 PM  
Anonymous Anonymous said...

Someone should post this on E-democracy so the phonys over there know their time is up.

SHAME ON ALL THE COUNCIL MEMBERS AND STAFF.THIS IS A SAD DAY FOR THE GOOD CITIZENS OF ST.PAUL.WE SHOULD EXPECT BETTER OUT OF OUR GOVERNMENT.

9:09 PM  
Anonymous Anonymous said...

Whoa. All I have are questions….

If I am to believe the city, why are they destroying documents? Shouldn’t the internal documents help prove their case?

Isn’t it a criminal offense to not comply with a court order? Does the city attorney defend city employees if they are brought up on criminal charges (even if the city ordered them to break the law)? Who would ever believe that Lantry had ONE e-mail in 2003? Preposterous. Kathy is smarter than that.

Bill Cullen.

9:15 PM  
Anonymous Anonymous said...

No Kathy is not smarter than that. She likes to fight, but she picked the wrong boys to try and bully.

9:35 PM  
Anonymous Anonymous said...

I don't think we'll hear from Repke for awhile.It might take him a bit to rebound from this.You might want to get some of Thunes pain pills to go in a fog.

9:46 PM  
Anonymous Anonymous said...

That does it, I'm off the fence now. They pulled this shit on me and I am going to be at my attorney's office when she gets there tomorrow. These Bastards!!!!!!!!

9:50 PM  
Anonymous Anonymous said...

Right in line with what we've heard all along ever since Jessamine. Get em good boys.

9:52 PM  
Anonymous Anonymous said...

HOLY SHIT!!!!!!!!!!!!!!

10:16 PM  
Anonymous Anonymous said...

Looks like the cat is out of the bag! I can't wait to see how they try and sweep this under their dirty caroet.

Where are you Eric Mitchell? The city needs you right now.

11:55 PM  
Anonymous Anonymous said...

Thanks Bob

I didn't think you would do it, but you did.

If anyone is wondering wether he will actually send you the rest of the documents, I'm hee to tell you that he will. It took a while, but WOW! Hundreds of pages of dirty laundry. No wonder they were destroying evidence. You really need to post all of this Bob. People are not going to believe it unless they see it with their own eyes.

12:31 AM  
Anonymous Anonymous said...

Repke,
Cat got your tongue?? You DumbASS

6:52 AM  
Anonymous Henry said...

I will bet the National news media will pick up on this story before the local media does. For some reason the locals want to protect these scum.
It's tough to keep up with Bob's blog. If you want to know whats up, this is the place to come.

7:29 AM  
Anonymous Anonymous said...

Breaker Breaker Big Blue Fox to Private Repke-You hit.

Blue Fox to Base-Private Repke showed hostile fire-I had to engage the enemy-I think he's hit-Over.Heading Back to base for a reload and fuel.

7:35 AM  
Anonymous Anonymous said...

Please don't delete consider this Backup Files Your urls great Forensic Evidence
http://sicko-citystpaul.blogspot.com/2008/03/stpaul-rico-destruction-of-e-commerce.html

12:42 PM  

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