Wednesday, April 27, 2011
The Gus Philpott Day in Zane Seipler's Case
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
ZANE SEIPLER, ) Docket No. 08 C 50257
)
Plaintiff, ) Rockford, Illinois
) Wednesday, April 6, 2011
v. ) 2:30 o'clock p.m.
)
CAPTAIN ANTON CUNDIFF, et al., )
)
Defendants. )
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE P. MICHAEL MAHONEY
APPEARANCES:
For the Plaintiff: (No Appearance)
For the Defendants: JAMES G. SOTOS & ASSOCIATES, LTD.
(550 E. Devon,
Suite 150,
Itasca, IL 60143) by
MS. ELIZABETH K. BARTON
Also Present: MR. FRANK R. PHILPOTT
Court Reporter: Mary T. Lindbloom
211 South Court Street
Rockford, Illinois 61101
(815) 987-4486
(The following is from a tape-recording of proceedings:)
THE COURT: 08 C 50527, Seipler v. Cundiff. Good
afternoon.
MS. BARTON: Good afternoon, your Honor. Elizabeth
Barton for the defendant.
THE COURT: All right.
MR. PHILPOTT: Good afternoon, your Honor. Frank R.
Philpott, commonly known as Gus Philpott, appearing pro se.
THE COURT: Yes, and you filed a motion to quash the
subpoena. Counsel, what's in the subpoena that you've asked for?
MS. BARTON: We've asked for any correspondence that
Mr. Philpott might have received from either the plaintiff, any
current or former McHenry County sheriff's deputies, a few
different other individuals that frequently make posts on the
blog that Mr. Philpott maintains, and also from Cal Skinner,
who's another blogger in McHenry County.
The reason why these blogs and the comments to the
blogs are important to our case is that these documents may or
may not be made by sheriff's deputies or people who are posing
as sheriff's deputies. It's become clear as we monitor these
blogs daily that certain information that's confidential to this
case or confidential to the sheriff's department has been
revealed either to Mr. Philpott or to any of the other bloggers
in the county.
THE COURT: Let's slow down. You want to be able to
look at any correspondence that he's done for a two or
three-year period of time with the named plaintiffs with any
sheriff's deputy of McHenry County and with what else?
MS. BARTON: And with -- there are one, two, three,
four other individuals.
THE COURT: And it's relevant because?
MS. BARTON: Because these people may have been giving
him information that's confidential in our lawsuit or that may
be -- that may come up in depositions. For instance, one of the
deputies was already deposed. He has since been released from
the sheriff's department for various reasons, and his
deposition --
THE COURT: I don't understand, counsel. It's not
information then you need to prepare your case that you're
looking for?
MS. BARTON: It is.
THE COURT: And how are you going to use this
information to prepare your case?
MS. BARTON: Well, we could either use it during
deposition testimony because some of the information is, for
instance, things that were said in the roll call room while
Mr. Seipler was employed or after his termination that is about
this case or the internal --
THE COURT: So, you're going to use it to impeach a
witness? What are you going to do with this stuff?
MS. BARTON: Well, they're not quite sure yet because
they haven't seen what is available to us yet.
THE COURT: So, you just want to -- you understand he's
not a party.
MS. BARTON: I do.
THE COURT: It's 27 months you've asked for.
MS. BARTON: From the beginning of the lawsuit. That's
correct.
THE COURT: Is there anything particular in his blog
that you believe is relevant to the lawsuit that's necessary for
you to obtain information on?
MS. BARTON: There's information about what certain
deputies might have said during roll call that's relevant to the
pending internal investigation that's still confidential.
THE COURT: But you've told me the pending internal
investigation's irrelevant to this lawsuit.
MS. BARTON: It may or may not be irrelevant. We
haven't disclosed it yet.
THE COURT: Well, you took the position as far as
discovery that, in fact, it's irrelevant and put that rather
forcefully when I had to do the last discovery motion in regard
to the case. But let me try to focus this, okay?
Mr. Philpott, if you had done a blog and if you had put
in the blog, you know, I know who robbed the bank -- okay? I'm
not saying you did that. I'm not saying a bank was robbed. But
if that's in your blog, then, obviously, they can discover to
find out who robbed the bank and how do you know that. All
right?
MR. PHILPOTT: Yes.
THE COURT: That's fair. Because you can't withhold
information from litigants just because you're doing a blog.
On the other hand, counsel, this seems to me to be
awfully broad. I've got 27 months. I've got every piece of
material that he may have exchanged. You're looking into this
blog pretty thoroughly. You're looking into -- you know, you're
going to have to get more surgical than this and tell me what
you're after and why you're after it before I'm going to allow a
third-party to have to comply with the subpoena.
I'll give you one more try. Tell me what you're after.
MS. BARTON: Well, if I could just -- to be fair with
the internal investigation --
THE COURT: Yes.
MS. BARTON: -- in your last order -- I know that you
don't discuss the orders, but you did say that --
THE COURT: If you found information that was relevant,
you couldn't withhold it because -- but that doesn't mean I made
the internal -- I said if you found information -- that's good
law, counsel.
MS. BARTON: I understand.
THE COURT: That's 26(e).
MS. BARTON: That's exactly right. So, that's why I'm
saying that if there's information regarding that's pertinent to
the internal investigation, that Mr. Philpott may or may not
have --
THE COURT: No. The information would have to be
pertinent to this lawsuit, not just the internal investigation
to get to it.
MS. BARTON: Okay. There's also information about the
deputies at roll call who said on his blog or --
THE COURT: What date are we talking about? When
Mr. Seipler was still there or not?
MS. BARTON: When Mr. Seipler was still there.
THE COURT: And what did the deputy say, according to
the blog?
MS. BARTON: That Mr. Seipler was either making
allegations against certain deputies for racial profiling or
that he or she overheard other deputies telling the people in
the roll call room --
THE COURT: Why do you want to know about that?
MS. BARTON: Because Mr. Seipler was terminated for
complaining about racial profiling. So, it's important to know
who he complained to and who was aware of the allegations at the
time.
THE COURT: But you could ask Mr. Seipler that and have
at his deposition, haven't you?
MS. BARTON: We have.
THE COURT: So, why does this person here have more
information than Mr. Seipler's given you?
MS. BARTON: Well, we're looking for the identity of
the deputies that were making those statements in the roll call
room or anywhere else in the sheriff's department, and so far we
haven't been able to determine who those deputies are.
THE COURT: Mr. Philpott, it's your turn.
MR. PHILPOTT: Your Honor, the subpoena is very broad
sweeping, as you've already identified.
THE COURT: I agree. I've already got that point.
MR. PHILPOTT: There are 400 at least employees of the
McHenry Sheriff's Department and untold number of former
employees. The request is for any and all correspondence or
documents from any former and/or current employee of the
department. I have no knowledge of the roster of the
department. I don't know who the employees are. I don't know
who the former employees are.
THE COURT: Well, we can get to that, Mr. Philpott, but
don't worry about it. That's not going to happen. Anything
else you want to tell me?
MR. PHILPOTT: Certain named screen names are
unfamiliar to me in this request. And a 27-month period from
November 2008 to February 2011 involves a huge number of
articles.
THE COURT: So, this would be burdensome for you to do?
MR. PHILPOTT: Yes, sir.
THE COURT: All right. I'm going to quash the subpoena
as it's issued. Counsel, if you want to do a surgical subpoena,
if you believe that this person has certain information that is
relevant to this lawsuit that I have, I'll take a look at it,
but it should be directed at information that I can tell whether
or not it's reasonable and I can do the balancing that's
necessary, reasonably calculated to lead to discoverable
material versus the burden that's being placed on a third-party,
and the court does take into consideration that it's being
placed upon a third-party, as compared to a litigant in the
lawsuit or a party in the lawsuit.
You won your motion.
MR. PHILPOTT: Thank you, your Honor.
THE COURT: Have a great day.
(Which were all the proceedings had in the above-entitled
cause on the day and date aforesaid.)
I certify that the foregoing is a correct transcript from
the tape-recording of proceedings in the above-entitled matter.
__________________________
Mary T. Lindbloom
Official Court Reporter
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
ZANE SEIPLER, ) Docket No. 08 C 50257
)
Plaintiff, ) Rockford, Illinois
) Wednesday, April 6, 2011
v. ) 2:30 o'clock p.m.
)
CAPTAIN ANTON CUNDIFF, et al., )
)
Defendants. )
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE P. MICHAEL MAHONEY
APPEARANCES:
For the Plaintiff: (No Appearance)
For the Defendants: JAMES G. SOTOS & ASSOCIATES, LTD.
(550 E. Devon,
Suite 150,
Itasca, IL 60143) by
MS. ELIZABETH K. BARTON
Also Present: MR. FRANK R. PHILPOTT
Court Reporter: Mary T. Lindbloom
211 South Court Street
Rockford, Illinois 61101
(815) 987-4486
(The following is from a tape-recording of proceedings:)
THE COURT: 08 C 50527, Seipler v. Cundiff. Good
afternoon.
MS. BARTON: Good afternoon, your Honor. Elizabeth
Barton for the defendant.
THE COURT: All right.
MR. PHILPOTT: Good afternoon, your Honor. Frank R.
Philpott, commonly known as Gus Philpott, appearing pro se.
THE COURT: Yes, and you filed a motion to quash the
subpoena. Counsel, what's in the subpoena that you've asked for?
MS. BARTON: We've asked for any correspondence that
Mr. Philpott might have received from either the plaintiff, any
current or former McHenry County sheriff's deputies, a few
different other individuals that frequently make posts on the
blog that Mr. Philpott maintains, and also from Cal Skinner,
who's another blogger in McHenry County.
The reason why these blogs and the comments to the
blogs are important to our case is that these documents may or
may not be made by sheriff's deputies or people who are posing
as sheriff's deputies. It's become clear as we monitor these
blogs daily that certain information that's confidential to this
case or confidential to the sheriff's department has been
revealed either to Mr. Philpott or to any of the other bloggers
in the county.
THE COURT: Let's slow down. You want to be able to
look at any correspondence that he's done for a two or
three-year period of time with the named plaintiffs with any
sheriff's deputy of McHenry County and with what else?
MS. BARTON: And with -- there are one, two, three,
four other individuals.
THE COURT: And it's relevant because?
MS. BARTON: Because these people may have been giving
him information that's confidential in our lawsuit or that may
be -- that may come up in depositions. For instance, one of the
deputies was already deposed. He has since been released from
the sheriff's department for various reasons, and his
deposition --
THE COURT: I don't understand, counsel. It's not
information then you need to prepare your case that you're
looking for?
MS. BARTON: It is.
THE COURT: And how are you going to use this
information to prepare your case?
MS. BARTON: Well, we could either use it during
deposition testimony because some of the information is, for
instance, things that were said in the roll call room while
Mr. Seipler was employed or after his termination that is about
this case or the internal --
THE COURT: So, you're going to use it to impeach a
witness? What are you going to do with this stuff?
MS. BARTON: Well, they're not quite sure yet because
they haven't seen what is available to us yet.
THE COURT: So, you just want to -- you understand he's
not a party.
MS. BARTON: I do.
THE COURT: It's 27 months you've asked for.
MS. BARTON: From the beginning of the lawsuit. That's
correct.
THE COURT: Is there anything particular in his blog
that you believe is relevant to the lawsuit that's necessary for
you to obtain information on?
MS. BARTON: There's information about what certain
deputies might have said during roll call that's relevant to the
pending internal investigation that's still confidential.
THE COURT: But you've told me the pending internal
investigation's irrelevant to this lawsuit.
MS. BARTON: It may or may not be irrelevant. We
haven't disclosed it yet.
THE COURT: Well, you took the position as far as
discovery that, in fact, it's irrelevant and put that rather
forcefully when I had to do the last discovery motion in regard
to the case. But let me try to focus this, okay?
Mr. Philpott, if you had done a blog and if you had put
in the blog, you know, I know who robbed the bank -- okay? I'm
not saying you did that. I'm not saying a bank was robbed. But
if that's in your blog, then, obviously, they can discover to
find out who robbed the bank and how do you know that. All
right?
MR. PHILPOTT: Yes.
THE COURT: That's fair. Because you can't withhold
information from litigants just because you're doing a blog.
On the other hand, counsel, this seems to me to be
awfully broad. I've got 27 months. I've got every piece of
material that he may have exchanged. You're looking into this
blog pretty thoroughly. You're looking into -- you know, you're
going to have to get more surgical than this and tell me what
you're after and why you're after it before I'm going to allow a
third-party to have to comply with the subpoena.
I'll give you one more try. Tell me what you're after.
MS. BARTON: Well, if I could just -- to be fair with
the internal investigation --
THE COURT: Yes.
MS. BARTON: -- in your last order -- I know that you
don't discuss the orders, but you did say that --
THE COURT: If you found information that was relevant,
you couldn't withhold it because -- but that doesn't mean I made
the internal -- I said if you found information -- that's good
law, counsel.
MS. BARTON: I understand.
THE COURT: That's 26(e).
MS. BARTON: That's exactly right. So, that's why I'm
saying that if there's information regarding that's pertinent to
the internal investigation, that Mr. Philpott may or may not
have --
THE COURT: No. The information would have to be
pertinent to this lawsuit, not just the internal investigation
to get to it.
MS. BARTON: Okay. There's also information about the
deputies at roll call who said on his blog or --
THE COURT: What date are we talking about? When
Mr. Seipler was still there or not?
MS. BARTON: When Mr. Seipler was still there.
THE COURT: And what did the deputy say, according to
the blog?
MS. BARTON: That Mr. Seipler was either making
allegations against certain deputies for racial profiling or
that he or she overheard other deputies telling the people in
the roll call room --
THE COURT: Why do you want to know about that?
MS. BARTON: Because Mr. Seipler was terminated for
complaining about racial profiling. So, it's important to know
who he complained to and who was aware of the allegations at the
time.
THE COURT: But you could ask Mr. Seipler that and have
at his deposition, haven't you?
MS. BARTON: We have.
THE COURT: So, why does this person here have more
information than Mr. Seipler's given you?
MS. BARTON: Well, we're looking for the identity of
the deputies that were making those statements in the roll call
room or anywhere else in the sheriff's department, and so far we
haven't been able to determine who those deputies are.
THE COURT: Mr. Philpott, it's your turn.
MR. PHILPOTT: Your Honor, the subpoena is very broad
sweeping, as you've already identified.
THE COURT: I agree. I've already got that point.
MR. PHILPOTT: There are 400 at least employees of the
McHenry Sheriff's Department and untold number of former
employees. The request is for any and all correspondence or
documents from any former and/or current employee of the
department. I have no knowledge of the roster of the
department. I don't know who the employees are. I don't know
who the former employees are.
THE COURT: Well, we can get to that, Mr. Philpott, but
don't worry about it. That's not going to happen. Anything
else you want to tell me?
MR. PHILPOTT: Certain named screen names are
unfamiliar to me in this request. And a 27-month period from
November 2008 to February 2011 involves a huge number of
articles.
THE COURT: So, this would be burdensome for you to do?
MR. PHILPOTT: Yes, sir.
THE COURT: All right. I'm going to quash the subpoena
as it's issued. Counsel, if you want to do a surgical subpoena,
if you believe that this person has certain information that is
relevant to this lawsuit that I have, I'll take a look at it,
but it should be directed at information that I can tell whether
or not it's reasonable and I can do the balancing that's
necessary, reasonably calculated to lead to discoverable
material versus the burden that's being placed on a third-party,
and the court does take into consideration that it's being
placed upon a third-party, as compared to a litigant in the
lawsuit or a party in the lawsuit.
You won your motion.
MR. PHILPOTT: Thank you, your Honor.
THE COURT: Have a great day.
(Which were all the proceedings had in the above-entitled
cause on the day and date aforesaid.)
I certify that the foregoing is a correct transcript from
the tape-recording of proceedings in the above-entitled matter.
__________________________
Mary T. Lindbloom
Official Court Reporter
# posted by Cal Skinner : 2:09 PM
