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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI WESTERN DIVISION KENYA BURKS V. PLAINTIFF CIVIL ACTION NO. 5:12-CV-19 DCB-MTP DEFENDANTS
CITY OF VICKSBURG, MISSISSIPPI, ET AL
MEMORANDUM IN SUPPORT OF MOTION TO COMPEL AND FOR SANCTIONS Pursuant to Federal Rule of Civil Procedure 37, Plaintiff moves this Court for an order compelling Defendant Winfield to adequately respond to Interrogatories and Requests for Production. In support of this motion, Plaintiff would show unto the Court the following: 1. On December 3, 2012, Plaintiff filed notices of service of Interrogatories
and Request for Production of Documents, and served the discovery upon Defendants. [Docs. 41-46]. On December 12, 2012, Plaintiff filed notices of service of a second set of request for production to Defendant Winfield. [Doc. 50]. 2. On January 3, 2013, Defendant Winfield served his responses to the
discovery. See Defendant’s Discovery Responses, attached hereto as Exhibit “A.” Plaintiff’s counsel received Defendant’s Winfield’s discovery responses on January 7, 2013 by mail. 3. Shortly after reviewing Defendant Winfield’s responses Plaintiff’s counsel
e-mailed Defendant’s counsel a letter explaining that Defendant’s responses were inadequate, and requested supplementation. See Letter from Nick Norris dated January 8, 2013, attached hereto as Exhibit “B.” 4. Since that time Plaintiff’s counsel has allowed Defendant Winfield two
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extensions to respond to the good faith letter; however, Defendant Winfield has never responded. See E-mail Correspondence, attached hereto as Exhibit “B”; See Affidavit of Nick Norris, attached hereto as Exhibit “C.” 5. In Defendant Winfield’s responses he first raises three general objections
to every discovery request, which is improper. See Exhibit “A.” In the first objection Defendant Winfield contends the definitions and general instructions at the beginning of discovery exceed the rules of civil procedure and/or the local rules. However, they do no such thing, and Defendant Winfield has failed to explain in anyway how any definition or instruction violates any rule. As such, this objection is improper, and Defendant Winfield should not be allowed to hide behind frivolous blanket objections. 6. The second general objection contends Defendant Winfield should not be
required to identify any documents that may be protected by the attorney client privilege or attorney work product doctrine. This objection is improper as it would violate Local Rule 26(A)(1)(C). Defendant Winfield’s refusal to proffer a privilege log should be construed as a waiver of the attorney client and/or attorney work product privileges. 7. Due to Defendant Winfield’s failure to provide a compliant Privilege Log,
Plaintiff herein moves for all relief available to Plaintiff under L.U.Civ.R. 26(a)(l)(C) and Fed. R. Civ. P. 37(a)(3)-(5) including all sanctions available to them under such Rules such as: (a) payment of all fees and expenses incurred in bringing this Motion under Fed. R. Civ. P. 37(a)(5); (b) an order requiring Defendants' full compliance with L.U.Civ.R.
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26(a)(I)(C) through the production of a compliant Privilege Log and\or a finding that Defendants have waived the purported privilege attached to such records along with the production of such records; and (c) Any other relief the Court finds appropriate under the applicable law. 8. The third general objection is to relevancy. This broad objection to every
discovery request is improper. In some responses to discovery requests Defendant Winfield appears to answer the request; however, Plaintiff cannot know if Defendant Winfield is withholding any information based on this improper objection. As such, Defendant Winfield should be required to properly answer the questions presented to him without hiding behind frivolous blanket objections. 9. Interrogatory No. 4 requests Defendant Winfield to identify any and all
extramarital affairs Defendant Winfield has had in the past five (5) years. Defendant Winfield objects to this request based on relevancy. It is anticipated that Defendant Winfield will claim at trial that he has never had an affair to defend against Plaintiff’s allegation that she had an affair with Defendant Winfield. The information is relevant as it could be used for impeachment should Defendant Winfield make such a claim at trial. Moreover, this information could lead to admissible information as “me too” evidence, which would be admissible later at trial. 10. Interrogatory No. 6 requests Defendant Winfield to identify his relationship
with Jackie Walker. Jackie Walker, Mayor Winfield’s current secretary, is believed to have had a sexual affair with Mayor Winfield while she was employed with the City of Vicksburg. Defendant objects to this request based on relevance and harassment. This interrogatory is relevant to impeach any potential defense by Defendant Winfield that 3
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he has never had an affair. Moreover, this information is relevant as “me too” evidence. On January 15, 2013, this Court entered an Order instructing Plaintiff to specify the names of the individuals and the facts she relies upon for her theory if she were to file any future motions regarding this issue. [Doc. 65 at p. 3]. As such, Plaintiff will provide detailed information regarding the individuals that are believed to have had affairs with Mayor Winfield so the Court may have more information to determine their relevancy. 11. Interrogatory No. 7 requests Defendant Winfield to identify all e-mail
accounts he used over the last five years. Defendant Winfield objects to this request based on relevancy, harassment, and privacy. This information is relevant to determine where potential relevant information may be stored regarding this case. Defendant Winfield identified that he had a Yahoo e-mail account, but refused to identify the e-mail address. Moreover, it is not clear if Defendant Winfield is refusing to disclose other email accounts because of the improper objections he raised. As such, Defendant Winfield should be required to identify all e-mails accounts he has used over the last five years. 12. Interrogatory No. 9 requests Defendant Winfield to identify the actions he
took to preserve electronic evidence. Defendant Winfield responded by saying he preserved it, but fails to identify what actions he took to preserve electronic evidence or when he took them. On April 27, 2011, Plaintiff’s counsel sent Defendant City of Vicksburg an electronic preservation letter. See Preservation Letter dated April 27, 2011, attached hereto as Exhibit “D.” On April 29, 2011, Travis Vance faxed Plaintiff’s counsel a letter on behalf of Defendant Winfield, where Mr. Vance assured Plaintiff’s counsel that Defendant Winfield would preserve all relevant evidence. See Letter from 4
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Travis Vance, attached hereto as Exhibit “E.” Immediately after receiving Mr. Vance’s letter Plaintiff’s counsel sent a letter to Mr. Vance that specified that Mayor Winfield would also become a defendant in the case, and made sure there was no confusion as to what information Plaintiff’s counsel was requesting to be preserved. See Preservation Letter dated April 29, 2011, attached hereto as Exhibit “F.” Essentially, Defendant Winfield wants to claim he preserved evidence, but does not want to explain what he preserved or when because Defendant Winfield was most likely not being truthful in his promise to preserve evidence. As such, the Court should require Defendant Winfield to properly answer this interrogatory. 13. Interrogatory No. 10 requests Defendant Winfield to identify his
relationship with Deborah Blake. Ms. Blake is employed by the City of Vicksburg in the city clerk’s office, and is the ex-wife of police officer Randy Blake. It is believed that Mr. Winfield had a relationship with Ms. Blake during the time Mr. Winfield was having a relationship with Plaintiff and after Plaintiff’s employment with City ended. Michael Mayfield, who is an Alderman for the City, has also made mention of this fact on several occasions. See Plaintiff’s Responses to Discovery at p. 22, attached hereto as Exhibit “G.” Mr. Winfield was adamant about firing Randy Blake while Plaintiff was employed by the City of Vicksburg. Plaintiff never understood why because Mr. Winfield would always say that Randy Blake’s godfather/uncle, Mr. Jim Sturgis, was a very close friend and political supporter of Mr. Winfield Then one day, Mr. Winfield revealed to Plaintiff that he thought Randy Blake was less than a man for putting Ms. Blake off child support. At that point, Plaintiff did not know Deborah Blake. Plaintiff asked the question “Well does Randy have custody of his kids?” Mr. Winfield stated, ‘Yes”. And Plaintiff 5
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asked, “Well why shouldn’t she be off child support? “ Mr. Winfield responded that Mr. Blake was a weak man and never should have done that to her. He then proceeded to talking about Randy’s current fiancée’/wife Mary Cole-Rather and how promiscuous she is. Mr. Winfield said that he heard that Mr. Blake did not like him and had been talking negatively about him in the community. Plaintiff asked Mr. Winfield why Mr. Blake did not like him. Mr. Winfield responded that it was because he had slept with both Ms. Blake and Ms. Cole-Rather in the past. Plaintiff responded by saying “Do you realize what you are saying to me?” Mr. Winfield replied, “No, No all of this happened before you.” 14. Later Plaintiff was informed that Ms. Blake had to sleep with Mr. Winfield
in order to be transferred from the City Water and Gas Department to the Clerk’s Office. Plaintiff was also informed that when questioned as to how she got transferred, Ms. Blake’s answer was “You know Paul is gullible, I had sex with him and he made sure I was transferred to City Hall.” 15. On a separate incident, HR Director Walterine Langford and City
Clerk Walter Osborne, were reportedly having a conversation in the Clerk’s office. Plaintiff has been informed that during this conversation (between Walterine Langford and Walter Osborne), Ms. Blake kept chiming in with facts about Mayor Winfield’s personal and financial life. Apparently, Ms. Langford found this conversation to be strange and asked Mr. Osborne, “How does Deborah know so much about the Mayor’s personal life?” Mr. Osborne then responded, “You know Deborah is sleeping with the Mayor now.”
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Defendant Winfield objects to this request based on relevance and
harassment. This interrogatory is relevant to impeach any potential defense by Defendant Winfield that he has never had an affair. Moreover, this information is relevant as “me too” evidence. If it is true that Ms. Blake had to have sex with Mayor Winfield to receive a different position with the City, then this could be admissible as “me too” evidence to show a pattern of sexual harassment by Mr. Winfield at the City of Vicksburg and the abuse of his position of authority as Mayor. 17. Request No. 1 requests Defendant Winfield to produce all e-mails in
Defendant Winfield’s possession that mention Plaintiff on any of the accounts Defendant identified. Defendant objects to this request based on vagueness, overly broad, relevancy, attorney client privilege, and attorney work product doctrine. This request is not overly broad as it is narrowly tailored to only e-mails concerning the Plaintiff, and all of those e-mails would either refer to her work at the City of Vicksburg or her affair with Defendant Winfield. It is also not vague as Defendant has identified two personal e-mail accounts to look at to determine if any e-mails refer to Plaintiff. A simple search for “kenya” and/or “burks” should suffice to find the e-mails. As such, Defendant Winfield should be required to produce all such e-mails. 18. Request No. 5 requests Defendant Winfield to produce all cell phone
records concerning Plaintiff. Defendant objected to the request, but stated that he would comply with the Court’s December 5, 2012 Order. To this date Defendant Winfield has failed to comply with the Court’s prior Orders on August 16, 2012 and December 5, 2012, requiring him to produce all such records. On August 16, 2012, Judge Roper held a Case Management Conference where he specified that the Court’s 7
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Order required Defendant Winfield to produce all cell phone records that would show when Defendant Winfield had a call or text message conversation with Plaintiff. As such, Defendant Winfield should be sanctioned pursuant to Rule 37(b) of the Federal Rules of Civil Procedures for refusal to comply with this Court’s Orders. Moreover, even without the Court’s prior Orders, Defendant Winfield should be required to produce this information as it confirms the text messages in Plaintiff’s possession detailing the adulterous affair were sent by Defendant Winfield, and were not fabricated as Defendant Winfield has contended to others. They also show that Defendant Winfield had more than a professional relationship with Plaintiff. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that the Court enter an Order compelling Defendant to proffer adequate responses to the referenced Interrogatories and Request for Production, and that Defendant Winfield be sanctioned pursuant to Rule 37(b) for his refusal to comply with this Court’s previous Orders. THIS the 7th day of February, 2013.
/s Nick Norris NICK NORRIS MB #101574
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OF COUNSEL: WATSON & NORRIS, PLLC 628 N. State Street Jackson, MS 39201 Phone: (601) 968-0000 Fax: (601) 968-0010 firstname.lastname@example.org
CERTIFICATE OF SERVICE
I, Nick Norris, attorney for Plaintiff do hereby certify that I have this day caused to be served by ECF a true and correct copy of the above and foregoing document to all counsel of record:
SO CERTIFIED, this the 7th day of February, 2013.
/s Nick Norris NICK NORRIS
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