of her son, J.M. a minor, and her daughter, A.M. a minor, Plaintiffs, vs. Chicago Police Officers ROBERT SMITH #20648, JAMES EVITT #2508, EDWIN GORMAN #20289, STACEY SMITH #2163, and the CITY OF CHICAGO, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 07 C 5908 Judge Gettleman Magistrate Judge Valdez

PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST DEFENDANT CITY OF CHICAGO, POLICE SUPERINTENDENT JODY WEIS, AND CORPORATION COUNSEL MARA GEORGES Plaintiffs, by their attorneys, and pursuant to Fed. R. Civ. P. 37(b)(2), move this Court to enter an order for sanctions against Defendant City of Chicago, Chicago Police Superintendent Jody Weis, and Corporation Counsel Mara Georges for refusing to comply with this Court’s orders of January 8, 2009, January 28, 2009, and February 18, 2009. (Dkt. Nos. 156, 166, 185), and Judge Valdez’s orders of December 5, 2008, January 21, 2009, February 3, 2009, and February 18, 2009.1 (Dkt. Nos. 139, 161, 167, 180). I. INTRODUCTION On February 20, 2009, the City of Chicago, by and through its chief police policy maker, Superintendent Jody Weis, and with the advice and counsel of corporation counsel Mara Georges, willfully and in bad faith violated orders of Judge Valdez and this Court to produce

Plaintiffs have initially brought this motion before this Court rather than Judge Valdez because several of this Court’s orders are implicated by the City’s defiance, because complaint related sanctions are sought, and in order to avoid the further delay which would no doubt be occasioned by objections brought to this Court after a ruling by Judge Valdez. 1

police repeater lists after having engaged in other deceptive discovery tactics designed to delay and obstruct Plaintiffs’ good faith attempt to obtain this and other related discovery on their Monell policy and practice claims, all in furtherance of Weis’ public relations campaign to shed his image as a police reformer and to look “tough” to his officers. Plaintiffs therefore move this Court for the following sanctions: (1) That this Court find as admitted each and every allegation in Plaintiffs’ Monell claim, (attached hereto as Exhibit A), including those allegations that the City has longstanding practices and customs of failing to adequately discipline, supervise and control Chicago police officers, particularly repeater officers such as defendant Smith, and a corollary practice and custom of countenancing and encouraging the police code of silence; (2) Enter the further findings that these practices and customs were maintained with deliberate indifference to the constitutional rights of the Plaintiffs herein, and were a direct and proximate cause of Plaintiffs’ injuries; (3) On the basis of these findings, enter a default judgment against the City on Plaintiffs’ Monell claim; (4) Permit complete discovery, including full and complete depositions of Mr. Weis and Ms. Georges, on the issue of their willful flaunting of Court orders in order to promote Weis’ image driven publicity campaign, and its relationship to Plaintiffs’ Monell claims, and, if necessary, a full evidentiary hearing on this motion; and (5) Order monetary sanctions against the City in an amount sufficient to reimburse Plaintiffs for their attorneys’ fees and costs incurred in connection with litigating this issue over the past eight months, to be doubled in order to punish the City and these policymaking officials for their bad faith conduct. II. FACTUAL BACKGROUND A. History of Police Repeaters and the Repeater Lists

Contrary to Superintendent Jody Weis’ sworn assertions, the problem of Chicago police repeater officers was first defined as such and brought to public attention by the Chicago Police Department itself through its Office of Professional Standards (OPS) Director David Fogel and


its Police Superintendent Leroy Martin at an October 1989 City Council Hearing on police brutality: ALDERMAN SHILLER: [E]arlier you said that . . . you would be aware if there were consistent reports or accusations against the same police officers repeatedly. DR. FOGEL: Yes. ALDERMAN SHILLER: How do you centralize that -DR. FOGEL: Well, during my time there at least there was a great deal of reliance first on collective memory, because we read every case every morning. And I have found that that was not good enough and so we start[ed] having computer runs on people who had repeated allegations against them. Not necessarily sustained cases, just cases wherein allegations were made. Until we got down to this elite repeater group. ALDERMAN SHILLER: How do you, and what does that mean? DR. FOGEL: [. . .] I'm telling you we now have identified in the department who the repeater group is. That doesn't mean that you're not going to get extraordinarily distorted behavior from the first time somebody gets involved in something, but we have a way of tracking the repeaters. City Council Hearing of October 6, 1989, at pp. 111-114, attached hereto as Exhibit B (emphasis added). Later in the hearing, Superintendent Martin confirmed that the failure to deal with repeaters was a “big problem” within the Department: SUPERINTENDENT MARTIN: No. I don’t believe that all of those complaints are without substance. In my experience, Alderman, I have found throughout history that poor people receive less professional service than those who are more affluent. So, I know for a fact that victimization on poor people, and particularly Black people, is heavier than it is on other communities . . . . ALDERMAN SHAW: [. . . ]Why do you think that these complaints are being made on a daily basis if there’s no substance to them? SUPERINTENDENT MARTIN: I believe there is substance, Alderman Shaw. I’ve never said there wasn’t substance. I believe that we have a big problem. I don’t always feel that the punishment meted out by the police department fits the crime. I think I’m on record, prior to these hearings, as being upset about that process. ALDERMAN SHAW: Okay. SUPERINTENDENT MARTIN: Too many cases can’t be sustained. I know a lot of them are true, I know they happen, but they’re one on ones and the officer, as the accused, has to be given the same weight as the complainant. *** SUPERINTENDENT MARTIN: But let me tell you this, the big problem we have in the police department is with the not sustained cases. . . I may 3

receive a complaint on an officer a number of times and I’m not able to prove those complaints . . . he is to be judged innocent . . . but I’m a firm believer . . . that where there’s smoke, there’s fire. City Council Hearing of October 10, 1989, at pp. 308-09, 420-21, attached hereto as Exhibit C. (emphasis added). The admissions of Fogel and Martin, and Fogel’s revelation that the Department kept computer generated repeater lists, proved to be a fertile ground for discovery and proof in a series of Monell failure to discipline, monitor and control repeater Chicago Police officers cases. From 1990 to 2006, more than a score of repeater lists were produced by the City to Plaintiffs’ counsel in a number of Monell cases. Some of these lists were marked confidential by the City of Chicago and thereby subjected to protective orders, while others were not so designated and are therefore public record. The repeater problem lead to an extensive Departmental “Excessive Force Study” of the top 200 repeaters in the early 1990's, and a Sun-Times study by an investigative journalist which revealed that the top repeaters, while comprising only 11% of the officers on the force, were responsible for 48% of the judgments and settlements paid by the City in police brutality cases. (Cops Free Rein Costs City Millions, Police Rarely Punished Over Repeated Misconduct Suits, Chicago Sun-Times, January 8, 1995, attached hereto as Exhibit D). The repeater problem also led to a computerized program, dubbed “Brainmaker,” which sought to identify repeaters and other problem officers as a method of predicting and preventing brutality and other deviant police conduct. (See Chicago Tribune and Chicago Sun-Times articles, attached hereto as Exhibit E). Unfortunately, the findings of the Excessive Force Study were ignored by the Department, and the “Brainmaker” program was disbanded by the Superintendent under pressure from the Fraternal Order of Police. Id. The lists, usually covering a four to five year period, revealed that a substantial number of officers compiled as many as 30 to 50 complaints during that time frame, with some of them continuing their misconduct for decades. A prime example was Special Operations Section officer Jerome Finnegan, who was first identified by the Department as a repeater in 1996, yet remained on the force for a decade, until his recent arrest for conspiracy to commit murder.


(Exhibit F).2 Conversely, indicted torturer Jon Burge and several of his henchmen, found to be notorious repeaters by the 2006 Report of the Special Prosecutor, do not appear on any of the lists. Most recently, repeater lists were produced by the City in Bond v. Uteras, 04 C 2617, another Monell case against the City of Chicago and several of its repeater officers. Originally under a protective order, Judge Lefkow released the lists after settlement, but this order has been stayed and is presently before the Seventh Circuit Court of Appeals. The materials produced in Bond were analyzed by an expert and later appeared in a public report published by the DePaul Journal for Social Justice. The Report found that meaningful discipline was imposed in less than 0.2% of the excessive force complaints filed against the top repeaters, a number that was shockingly deficient in light of all national standards. With regard to repeaters, the Report found: Less than five percent of the Department account for nearly half of all abuse complaints against the CPD. Indeed, 662 Chicago police officers, a little less than 5% of the CPD's 13,500 member force, amassed 11 or more official misconduct complaints between 2001 and 2006. Because the vast majority of officers get only a few complaints in their entire careers, it is easy to identify those who may be engaged in a pattern of abusive behavior. They literally jump off the page . . . Yet the CPD refuses to look or allow others to look at its "repeater" data. It chooses not to know - - avoiding critical self-examination and fighting public and judicial scrutiny of its practices. Once the veil is lifted, the Department's own data make clear that the CPD lacks any effective system to address patterns of abuse. A complaint against a repeater officer is no more likely to lead to meaningful discipline than a complaint against the 80% of Chicago officers who do not accumulate abuse complaints. A repeater can be 99.8% confident that no meaningful discipline will result from being charged with the abuse of a civilian. In other words, the probability is just 0.2% that reported abuse will lead to meaningful discipline of an officer who has earned eleven or more abuse complaints in the last five years. 75% of the repeaters have not received discipline of any kind whatsoever. Futterman, Mather, Miles, The Use of Statistical Evidence to Address Police Supervisory and Disciplinary Practices: The Chicago Police Department’s Broken System, DePaul Journal for

Finnegan was first identified as a repeater with 16 complaints in a list generated by the City in 1996. This list, like several other lists generated at the same time, were not designated as “confidential” when produced and are therefore, unlike many of the other lists, not subject to the privacy constraints of a protective order. 5


Social Justice, Vol. 1, No. 2, Spring 2008, pp. 277-278 (excerpted section attached hereto as Exhibit G) (emphasis added). In 2007, a spate of brutal beatings by off-duty Chicago police officers recorded on videotape and the public exposure of the City’s longstanding and continuing failure to properly discipline particularly its repeater officers led to the resignation of Superintendent Cline, public hearings before the City Council, and some mostly cosmetic reforms to the police disciplinary agency. Subsequently, Mayor Daley appointed Jody Weis as the new Superintendent, ostensibly to aggressively deal with the pressing problem of out of control police misconduct. Unfortunately, Mr. Weis, under pressure from the Fraternal Order of Police, has now chosen to use the issue of production of repeater lists under a stringent protective order to one up the prior Superintendents, none of whom went so far as to defy the Court orders in order to promote their image within the Department while covering-up the continuing problem of repeater cop brutality and the Department’s unwillingness to adequately deal with it. B. History of the Present Litigation

Plaintiffs’ amended complaint alleges that white Chicago police detective Robert Smith, while off duty, used his police powers to beat, falsely arrest, and otherwise harass and intimidate 11 year old, J.M., and his 13 year old sister, A.M., at a school playground on May 5, 2007. The suit further alleges that during and after bearing the children, who are African-American, Smith used his police office to further intimidate them and their mother, Donna Moore, who was forced to stand by while he obtained, with the willing cooperation of Defendant, and wife, officer Stacey Smith, and several other officer Defendants, the false arrest and detention of the children. Plaintiffs have also sued the City of Chicago under Monell for its alleged de facto policies, practices and customs of failing to adequately train, discipline, supervise, monitor and control officers, particularly those who, like Defendant Robert Smith, are repeatedly accused by citizens of brutality and other serious violations of constitutional rights. (Dkt. No. 70) (See Exhibit A). Discovery and investigation have established that Robert Smith and his wife are both classic problem officers, whom the City has abjectly failed to discipline. This evidence shows that Robert Smith, in a prior racist off-duty incident, while in a drunken rage, beat an AfricanAmerican tavern employee, repeatedly called him a “nigger,” threatened to kill him with his 6

drawn service revolver, and pulled several dread locks from his head. Although the OPS recommended that Smith be fired, Police Superintendent Cline reduced the punishment to a slap on the wrist suspension, with no counseling or monitoring. As a result, not surprisingly, Smith again abused his police powers, this time against two African-American children.3 On April 1, 2008, Plaintiffs issued a request for production to Defendant City seeking, inter alia, the following documents, commonly referred to as “repeater lists”:4 (1) any and all such lists, including, but not limited to, those that contain the name and star number of each Chicago police officer who has received multiple (e.g., 5, 10, 20, or more) CR complaints in the last five years, and, for each and every officer listed, the resolution of the complaints, and disciplinary measures, if any, that were taken in response to the complaints against the officer [Request for Production No. 18];5 and (2) unredacted copies of the repeater lists that were produced, unredacted, by the City in Bond v. Utreras, No. 04 C 2617 (N.D. Ill.), including those entitled “Police Officers With More Than 10 C.R. Investigations Formerly Assigned to Public Housing South - Unit 715” (bates numbers POL02027-02028), “Police Officers - - More Than 10

According to a separate lawsuit recently filed by a Chicago man named Michael Sparr, Stacey Smith and a co-defendant, with whom she was romantically involved, harassed, falsely arrested, and conspired to murder Mr. Sparr and use Smith’s police powers to protect themselves from criminal charges. See Sparr v. Smith et al., 08 C 5162; and Cop Aided Shooter, Suit Says, Chicago Sun-Times, September 12, 2008, attached hereto as Exhibit H. As shown above, OPS director Fogel, acting on behalf of the Police Department, rather than Plaintiffs’ counsel, coined the phrase “repeater,” and initiated the electronic tracking of such problem officers. Throughout the course of litigating the motion to compel, Plaintiffs’ Request for Production No. 18 was refined into “Request No. 18A and 18B” which sought: (1) A list which includes the full name, star number, and unit of each Chicago police officer who has received more than five citizen complaints at any time from 2000 to the present, a listing of the CR number and complaint category, and, for each and every citizen complaint listed, the resolution of the complaints, and disciplinary measures, if any, that were taken in response to the complaints against the officer; and (2) A list which includes the full name, star number, and unit of each Chicago police officer who has received more than five excessive force complaints at any time from 2000 to the present, a listing of the CR number and complaint category, and, for each and every citizen complaint listed, the resolution of the complaints, and disciplinary measures, if any, that were taken in response to the complaints against the officer. 7
5 4


CRs” (bates numbers POL02023-02026), and the “repeater list” contained in bates numbers POL00835-01043 [Request for Production No. 55]. (See Defendant City of Chicago’s Responses to Plaintiffs’ Requests to Produce, Nos. 18 and 55, attached as Exhibit I). On May 5, 2008, Defendant City filed a motion to “structure discovery” which sought to postpone Monell discovery, including production of the repeater lists, until fact discovery was completed. (Dkt. No. 56). Also on May 5, Defendant City responded to Plaintiffs’ request for production in part, producing documents related to the claims against the individual officers, but refusing to produce Monell related documents until Judge Valdez ruled on its motion to structure discovery. (See Exhibit I). On June 4, 2008, after briefing and argument, Judge Valdez denied the City’s motion to structure discovery, ordering that Plaintiffs were entitled to seek discovery on their Monell claim. (Dkt. No. 75). On September 10, 2008, after several Local Rule 37.2 letters and phone calls, Plaintiffs filed a motion to compel discovery. (Dkt. No. 109). On September 17, 2008, the City filed its response. In it the City raised the purported issue of privacy and safety of the repeater officers. (Dkt. No. 114). On September 18, 2008, Judge Valdez held a motion hearing, heard extensive argument on Plaintiffs’ motion to compel, and took the matter under advisement.6 (Dkt. No. 116). On September 22, 2008, the City filed a motion to file a supplemental response brief in opposition to Plaintiffs’ motion to compel. (Dkt. No. 118). Officer privacy and safety was again raised by the City. On September 24, 2008, this Court granted the City’s motion to file a supplemental response brief and gave Plaintiffs the opportunity to reply. (Dkt. No. 120). On October 1, 2008, Plaintiffs filed their reply brief to the City’s supplemental response brief. (Dkt. No. 121). On October 6, 2008, the City filed a motion to deny as moot Plaintiffs’ pending motion to compel. (Dkt. No. 123). On October 8, 2008, Plaintiffs filed a response in opposition to the City’s motion. (Dkt. No. 125). On October 9, 2008, Judge Valdez held a motion hearing, denied the City’s motion to moot Plaintiffs’ motion to compel, and ordered further briefing on the matter. (Dkt. No. 126). On October 27, 2008, the City filed a

Senior Corporation Counsel George Yamin, who was not an attorney of record in the case, but was counsel in Bond, asked for and was granted leave to argue the motion on behalf of the City. 8


memorandum pursuant to the Court’s order, in which it again raised officer privacy and safety. (Dkt. No. 129). On October 29, 2008, Plaintiffs filed a response to the City’s memorandum. (Dkt. No. 131). On December 5, 2008, Judge Valdez granted Plaintiffs’ motion to compel as to Request Nos. 18A and 18B in all respects other than temporal scope, and denied Plaintiffs’ motion as to Request No. 55. (Dkt. No. 139). Judge Valdez’s order, finding that “Defendant's concerns about the officers’ privacy are adequately addressed by the Court's ruling on the parties’ proposed protective orders,” stated in pertinent part: Defendant argues that Plaintiffs’ request for a list of officers with more than five CR files from 2000 to the present is overbroad and not reasonably calculated to lead to the discovery of admissible evidence because it would identify officers who had only one CR opened every year. Plaintiff responds that the requested repeater list would also include clearly relevant information, such as any officers who had five complaints against them in one or two years, and then retired or were fired. Plaintiff further argues that whether officers are considered to be repeaters is an issue for the experts and the jury at trial. The Court agrees that Plaintiffs’ request for lists of officers with at least five CR files is reasonably calculated to lead to the discovery of admissible evidence. The fact that the request may also encompass some officers who will not be considered “repeaters” for purposes of Plaintiffs’ municipal liability claim does not make the request improper. The Court will not, at the discovery stage, limit Plaintiffs’ requests in a way that will not allow Plaintiffs to discover relevant and possibly admissible evidence. *** Defendant argues that identifying officers by name or otherwise is not reasonably calculated to lead to discoverable evidence and that producing statistical evidence of CR files in summary form is sufficient for Plaintiffs’ purposes. Plaintiffs respond that the officers’ identifying information is necessary for them to prove their municipal liability claim. Plaintiffs argue that proof of repeated complaints against officers is relevant, and indeed essential, to demonstrate the City’s deliberate indifference [. . . ] Plaintiffs’ counsel represent that they intend to compile the requested lists and two dozen other repeater lists they obtained from the City in other cases from 1990 to 2000. Ultimately, Plaintiffs expect to track officers from list to list, in an effort to establish a pattern and practice of failing to adequately discipline, supervise, and monitor “repeater” officers. Plaintiffs state that they will be unable to track the officers in this manner if their names are not included on the lists. Plaintiffs also contend that the 9

officers’ privacy interests will be sufficiently protected through a protective order to be entered in this case. The documents Defendant proposes to produce in response to Plaintiffs’ discovery Requests No. 18A and 18B list the total number of employees, total number of CRs, complaint categories, employee findings, and penalty totals. (Def.’s Supp. Brief, Ex. A [Doc. No. 129].) The Court concludes that this statistical summary of CR files would be remarkably unhelpful to Plaintiffs. The aggregate numbers provide no guidance for Plaintiffs to determine whether there are any particularly egregious repeaters within this group, let alone whether any complaints against them were sustained and what punishment, if any, they received in response to any sustained complaints. Plaintiffs are entitled to discovery that is relevant to determine the City’s response to repeater officers. Plaintiffs’ motion to compel responses to Request Nos. 18A and 18B is therefore granted to the extent it seeks details about the citizen complaints and identifying information about the repeater officers. Order of December 5, 2008 at pp. 5-6 (emphasis added). On December 19, 2008, the parties filed cross-objections to Judge Valdez’s order of December 5, 2008. (Dkt. Nos. 146 and 148). In the City’s objection, it again argued privacy concerns. On December 30, 2008, this Court held a motion hearing and took the parties’ crossobjections under advisement. (Dkt. No. 153). On January 8, 2009, this Court issued an order denying the parties’ cross-objections, in which it rejected the City’s privacy arguments, and stated in pertinent part: The first objection concerns Judge Valdez’s ruling with respect to plaintiffs’ requests 18A and 18B for information regarding police officers who have more than 5 citizen or excessive force complaints. The court finds that Judge Valdez’s decision to limit the information to the five years prior to the May 5, 2007, incident in question in the instant case, to require disclosure of the names and other identifying information, and to include post incident information is neither erroneous or contrary to law. Such decision are committed to the sound discretion of the magistrate judge, and this court finds no reason to disturb them or to conclude that a mistake has been made. *** The Court takes this opportunity to note that the City’s professed “wariness” and lack of confidence in the court’s protective orders are misplaced. This court will vigorously enforce the terms of its orders, particularly those provisions intended to ensure the privacy and safety of Chicago police officers as well as complaining and other witnesses in police 10

disciplinary matters. This court has confidence that Magistrate Judge Valdez will ensure that any information that requires protection will be subject to appropriate restrictions. Order of January 8, 2009 at pp. 1-2 (emphasis added) (Dkt. No. 156). The next day, on January 9, 2009, Plaintiffs’ counsel sent a letter to counsel for the City, Rita O’Connor, asking that she produce the repeater lists, pursuant to this Court’s order, by January 19, 2009. (See 1/9/09 letter to City, attached hereto as Exhibit J). On January 21, 2009, Judge Valdez held a motion hearing wherein Ms. O’Connor advised the Court that she had not yet produced the repeater lists as ordered because she was contemplating filing a motion to reconsider this Court’s last order. (Dkt. No. 161). She further represented that it would take the City two weeks to generate and produce the lists. Judge Valdez ordered the City to begin immediately compiling the lists internally in the likely event that this Court denied the City’s motion. On January 22, 2009, the City filed a motion to reconsider pursuant to Rule 59(e), which it misnamed as a “motion to clarify” this Court’s order of January 8, 2009, and asked to stay the requested discovery pending the Seventh Circuit’s ruling in the Bond case. (Dkt. No. 163). On January 27, 2009, Plaintiffs filed a response in opposition to this motion. (Dkt. No. 165). On January 28, 2009, this Court held a motion hearing and denied the City’s motion. (Dkt. No. 166). Later that day, Plaintiffs’s counsel sent a letter to counsel for the City asking that she produce the lists on or before the next status date of February 3, 2009, in conformance with this Court’s order as well as her representation in Court on January 21, 2009, that it would take the City two weeks to generate and produce the lists,. (See 1/28/09 letter to City, attached hereto as Exhibit K). At the February 3, 2009, status hearing before Judge Valdez, counsel for the City, over Plaintiffs’ objection, asked for and was granted an additional two weeks to produce the lists. (Dkt. No. 167). On the morning of February 11, 2009, Plaintiffs’ counsel spoke with Ms. O’Connor, who explicitly informed counsel that she would produce the repeater lists by the next status date of February 17, 2009. That afternoon, the law firm of Dykema Gossett entered the case on behalf of the City and then filed yet another motion to reconsider, this time purporting to seek reconsideration of this Court’s order of January 28, 2009, which had denied the City’s


original Rule 59(e) motion. (Dkt. No. 172).7 In this pleading, the City attached the sworn statement of Superintendent Weis in which he again asserted the privacy, safety and morale issues. The City also filed a motion before Judge Valdez asking her to stay her order that the City produce the lists by February 17, 2009, until the motion filed before this Court was ruled upon. (Dkt. No. 174). On February 17, 2009, Judge Valdez held a motion hearing (Dkt. No. 178) in which the following colloquy occurred: THE COURT: All right, let’s deal with the other issue. We have a partial motion to stay. What’s the plaintiff’s position on this? MR. ELSON: Judge, I think it’s outrageous. I think they’re playing games with the court, they think they’re above the law. You set this status because you ordered them to fully comply with your order. They have not done so. *** THE COURT: All right. At this point what I’m doing, I originally ruled and now, though, the order that I’m enforcing is Judge Gettleman’s order. That is the order that stands, Judge Gettleman’s order on my order. Nonetheless, though, what we have is, you know, delay on behalf of the City and now we have a motion that is currently before the district court to stay a matter he has decided twice already, is that correct? MR. BURNS: It’s to reconsider one aspect of that, Judge, in his ruling, as we set forth in our motion. Depending on that ruling, we will be producing the lists. *** THE COURT: So what you are recounting for the court is that as soon as Judge Gettleman rules, and if he denies your request, you would be ready to provide the information in how many hours? MR. BURNS: It’s a sizeable amount, I don’t want to mislead you giving you hours. I can find that information out to be precise, Judge. We are ready. As I said, we have the redacted lists subject to your protective order that hasn’t been entered by you yet to provide that aspect of it, which provides significant information as requested. The only difference would be the names are not included in that list. Tomorrow morning we are asking the judge to reconsider his position and obviously we will abide by whatever decision he makes, your Honor. THE COURT: Anything else?

Lawyers from Dykema represent the City in numerous cases arising out of allegations of torture and other related misconduct at Area 2 under Jon Burge, and, according to documents obtained pursuant to FOIA, have been paid more than $4.5 million to date by the City for their services in those cases. 12


MR. ELSON: Yes, Judge. With all due respect to Mr. Burns, he says he is doing this in good faith. They could have filed a motion in front of Judge Gettleman and noticed it up for this morning. He has a call this morning. We could have dealt with this before we came to you right now. Instead, he motioned it up for tomorrow. It indicates to me that he is playing games [. . .] I would ask at the very least for an on-the-record statement that he is going to produce lists with the officers’ identities as you have ordered him to produce if Judge Gettleman denies this most recent motion. THE COURT: Well that’s what I heard. MR. BURNS: I don’t have much choice. If a district court judge and yourself orders that, I mean, we have exhausted any relief that may be available to us. THE COURT: All right. So how much time do you need? I’m going to give you 24 hours to provide the information once Judge Gettleman rules. Obviously, if he rules in your favor, then you’re not going to have to do so. MR. BURNS: Why don’t we, your Honor, if I may suggest this to you, we are up before him tomorrow, whether you bring us back tomorrow or the next day, Thursday. *** THE COURT: All right, let’s bring you back tomorrow at 10:00. I just want to make sure that you understand what the court’s anticipated ruling will be if your motion is denied, a very, very short time frame to turn over the materials. (Transcript of February 17, 2009, attached hereto as Exhibit L) (emphasis added) (Dkt. No. 178). The next morning, this Court held a motion hearing. (Dkt. No. 185). In attendance was Corporation Counsel Mara Georges, her first assistant, Karen Steinmetz, Terrence Burns and another Dykema lawyer, as well as Ms. O’Connor and another assistant corporation counsel. Counsel for the Fraternal Order of Police also appeared, and moved to intervene in order to file an amicus brief in support of the City’s position. Mr. Burns then again argued the same bankrupt “privacy” and “safety” position, this time relying on Weis’ sworn statement. This Court again rejected the Weis privacy/safety/morale argument, and denied the City’s motion for rereconsideration, stating: THE COURT: [. . . ] You know, I have faith in Mr. Taylor’s organization to comply with the protective order provisions that will protect these officers’ identifying information from public disclosure. As Mr. Taylor has said, this has been going on in this, if not this case, in many cases for years and years and years, and I have yet to have a problem, a serious problem actually brought to my attention of any violation of any such protective order by this group of lawyers or, frankly, by anybody else that comes in front of me. The motion is denied. 13

(Transcript of February 18, 2009, attached hereto as Exhibit M).8 After Ms. Georges and the other City lawyers huddled for twenty minutes, several of them appeared before Judge Valdez and the following colloquy occurred: THE COURT: Well, as you know, we have gone very many rounds on this issue. MR. BURNS: I understand that, your Honor. THE COURT: And all arguments have been made. The court has addressed all of those arguments. I am going to enforce my order as modified by Judge Gettleman, so when will you be prepared to hand over the information? MR. BURNS: Your Honor, I am going to meet with the Superintendent and explain the court’s ruling and I would ask the court if I could report back to you Friday morning, if that’s acceptable to you. MR. TAYLOR: Judge, they have had time to talk to Jody Weis. They got an affidavit from him. They have the lists because they have said in their pleadings that they would give them to us without the names, so obviously, they have them with the names and they have redacted the names out of them. So the lists are there. It’s time to produce them, Judge. THE COURT: I’ll give you until Friday at 4:00 to produce the information. (Transcript of February 18, 2009, attached hereto as Exhibit N). On February 20, 2009, at 5:09 p.m., the City filed a “statement” by Superintendent Jody Weis, again pleading non-existent safety, privacy, and morale interests that had previously been rejected by this Court and Judge Valdez too numerous times to count, and notifying the Court that he and the City would not comply with its orders to produce the lists. (Dkt. No. 184). III. ARGUMENT Rule 37(b)(2) addresses the effect of a failure to obey a court’s order to provide or permit discovery, whether by a party or an officer, director or managing agent of a party. Fed. R. Civ. P. 37(b)(2). In such a case, “the court in which the action is pending may make such orders in regard to the failure as are just.” Id. Rule 37(b)(2) provides the Court with a range of sanctions when a party and/or his attorney refuses to comply with an order providing or permitting discovery. These include orders designating certain facts as established (see Fed. R. Civ. P. 37(b)(2)(A)(i)); orders prohibiting a party from supporting or opposing certain claims or defenses, including by prohibiting the introduction of evidence (see Fed. R. Civ. P. 37(b)(2)(A)(ii)); orders striking

The Court also denied the FOP motion to intervene. 14

pleadings, whether in part or in their entirety (see Fed. R. Civ. P. 37(b)(2)(A)(iii)); and the entry of a default judgment in the matter (see Fed. R. Civ. P. 37(b)(2)(A)(vi)). Sanctions such as striking the answer or entering a default judgment can be imposed when disobedience has been willful, in bad faith, or otherwise culpable. Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958) (sanctions under Rule 37 justified where responding party has control over documents requested and fails or refuses production without showing of inability to comply with court’s order); see also United States v. DiMucci, 879 F.2d 1488, 1493 (7th Cir. 1989) (district court’s entry of default judgment affirmed where defendants’ refusal to comply with discovery orders clearly constituted contumacious conduct which caused 10 months’ delay seriously prejudicing plaintiff’s trial preparations); Golant v. Levy (In re Golant), 239 F.3d 931, 936 (7th Cir. 2001). Open and unequivocal defiance of a court order is sufficient to support a finding of bad faith or wilful misconduct. Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 524 (2d Cir. 1990). Additionally, Rule 37 provides that where a party fails to comply with a court order, “[i]nstead of or in addition to the orders [listed in Rule 37(b)(2)(A), sub-parts (i)-(vii)], the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified…” Fed. R. Civ. P. 37(b)(2)(C); see, e.g., Shaukat v. Wireless 4 U, Inc., 2009 U.S. Dist. LEXIS 10664 (N.D. Ill. Jan. 29, 2009) (St. Eve, J.) (awarding the plaintiffs substantial attorneys’ fees where the defendants “routinely failed to cooperate with Plaintiffs’ discovery attempts”); Classic Amenities, Inc. v. Verbeke, 2001 U.S. Dist. LEXIS 7465 at *4-5 (N.D. Ill. 2001) (Grady, J.). Here the evidence shows that the City embarked on a willful eight month course of conduct to deprive Plaintiffs of their rightful Monell discovery and proof. In the process, it not only contravened almost 20 years of City compliance with similar requests to produce repeater lists, but also brought Plaintiffs’ attempts to proceed with Monell discovery to a grinding halt. Monell depositions of policymaking officials were delayed, as was the time consuming task of identifying case studies of certain listed egregious repeaters for further discovery, and informing and consulting with Plaintiffs’ experts in order for them to utilize the case studies and to 15

statistically develop the information. After the City repeatedly failed on the merits of its argument, it then repeatedly promised the Court that it would promptly comply with the orders to compel production, once its final attempts to have the Courts reconsider failed. However, when these final efforts did fail, the chief police and City policymakers - - Jody Weis and Mara Georges - - - entered the fray, and, through private counsel retained at taxpayers expense, brazenly informed the Court that they would not comply with the series of orders to compel that had been issued by this Court and Judge Valdez. The purported basis for this refusal was one that was transparently meritless - - - that the privacy, safety, and morale of the repeater officers would somehow be compromised by the production of the lists under a rigorous protective order to lawyers who had religiously honored all protective orders for the past 20 years. This argument had been repeatedly rejected by both this Court and Judge Valdez, and, given the City’s subsequent affirmative actions in publicizing Weis’ defiant and illegal conduct (see Exhibit O),9 was impermissibly designed to further his political and public image agenda. Moreover, the last minute reversal of repeated promises to the Court that the City would comply further demonstrates its bad faith - - - either its lawyers were repeatedly misleading the Court and counsel, or Georges and Weis made the decision to renege on prior representations, double cross the Court and counsel, and to front a bogus reason for their defiant behavior. This conduct fully supports the entry of issue related sanctions and default. Specifically, all of the allegations in plaintiffs’ Monell claim, particularly those alleging failure to discipline, supervise, and control, the code of silence, deliberate indifference, and causation should be deemed admitted, and a default judgment entered against the City. Additionally, Plaintiffs’ counsel must be awarded fees at their current hourly rates for all work expended and to be expended in the future on this issue, which to date is $39,380, as well as all costs.10 Additionally,

The City’s public relations officer, in an email to the press, again fronted Weis’ “harm to the police department” shibboleth, and invited Plaintiffs to file a contempt petition. To date, Taylor has expended 48.8 hours and Elson has expended 68.8 hours on the repeater list issue. (See Taylor and Elson Time Sheets, attached hereto as Exhibit P). Their current hourly rates, as awarded in January of 2009 by Judge Dow in Delgado v. Mak, 2009 U.S. Dist. LEXIS 6287 (N.D. Ill. Jan. 29, 2009), are, respectively, $525 and $200 per hour. Counsel will supplement this request with subsequent hours expended and all costs incurred. 16


that award should be doubled as a punitive measure, given the bad faith flaunting of Court orders for political and public image purposes. This Court should also order complete discovery, including the depositions of Weis and Georges, on the issues of bad faith and how this conduct is a continuation of the policies and practices alleged by Plaintiffs in their Monell claim. Finally, if necessary, this Court should hold a full evidentiary hearing on this motion. IV. CONCLUSION For the reasons stated above, Plaintiffs respectfully move that this Court grant their motion for sanctions; deem the allegations made in Plaintiffs’ Monell claim to be admitted; enter a default judgment against the City on Plaintiffs’ Monell claim; order monetary sanctions in an amount sufficient to reimburse Plaintiffs for their attorneys’ fees and costs incurred in connection with litigating this issue and to punish the City and its policymakers for their bad faith conduct; permit complete discovery on the question of bad faith by police and City policymakers; if necessary, hold an evidentiary hearing on this motion; and any other such relief as this Court deems appropriate.

Respectfully submitted, Dated: February 24, 2009 /s/ G. Flint Taylor G. Flint Taylor Ben H. Elson Jan Susler People’s Law Office 1180 N. Milwaukee Chicago, IL 60642 Attorneys for Plaintiffs

Additionally, if the Court so wishes, counsel will provide complete skills affidavits and related supporting materials. 17

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