Case: 1:13-cv-05626 Document #: 471 Filed: 12/05/17 Page 1 of 16 PageID #:5989

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSE ANDRES CAZARES, Special )
Administrator of the Estate of ANDREW )
CAZARES, Deceased )
)
Plaintiff, ) No.: 13-cv-05626
)
v. ) Honorable District Judge Kendall
)
JOSEPH FRUGOLI, JOHN R. MORAN )
PRIMERO, INC., an Illinois Corporation, )
METROPOLITAN BANK LAND TRUST )
1463, and CITY OF CHICAGO, )
municipal corporation )
)
Defendants )

FAUSTO T. MANZERA, as Special )
Administrator of the Estate of Fausto A.)
Manzera, deceased, and Maria Valez, as )
co-special administrator of the Estate of
)
Fausto A. Manzera, deceased )
)
Plaintiff, ) No.: 1:13-cv-05626
)
v. ) Honorable District Judge Kendall
)
JOSEPH FRUGOLI, JOHN R. MORAN )
PRIMERO, INC., an Illinois Corporation, )
METROPOLITAN BANK LAND TRUST )
1463, and CITY OF CHICAGO, )
municipal corporation )
)
Defendants. )

MOTION FOR SANCTIONS AGAINST DEFENDANT
CITY OF CHICAGO PURSUANT TO FEDERAL RULE 26 AND RULE 37

Plaintiffs, JOSE ANDRES CAZARES, by and through his attorneys, CAVANAGH

LAW GROUP, and FAUSTO T. MANZERO, by and through his attorneys, COONEY &

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CONWAY, move this Court, pursuant to Fed. R. Civ. P. 26 and 37, for an order imposing

sanctions against Defendant City of Chicago and their counsel for failing to respond and produce

documents relating to a 1992 internal investigation of Joseph Frugoli, given a Complaint

Register (“CR”) number 194190, from an incident that occurred on August 8, 1992. In support

of this motion, Plaintiffs state as follows:

BACKGROUND

1. This is a § 1983 case against the City of Chicago and Chicago Police Officer

Joseph Frugoli. Plaintiffs allege that the City failed to investigate, discipline or terminate Frugoli

for his misconduct in the past, which emboldened him to continue his behavior and drive

intoxicated on April 10, 2009, resulting in the deaths of Andrew Cazares and Fausto Manzera.

PLAINTIFFS’ DISCOVERY REQUESTS

2. On May 5, 2014, Defendant City of Chicago Responded to Plaintiff Cazares’

Request for Production of Documents. (See Exhibit A). In response to this request, the City

“agrees to produce Defendant Frugoli’s employee complaint history and the Complaint Register

investigative files listed on this history, upon entry of an appropriate protective order.” Id.

3. In response to Defendant City’s discovery answers, Plaintiffs’ counsel sent the

City correspondence on August 5, 2014, requesting the complete complaint history for

Defendant Frugoli. The letter stated, “Whether Frugoli was disciplined for his prior crimes goes

to the heart of this claim, and that the City’s shielding of Frugoli from discipline emboldened

him to commit the crime that is the subject of this case. We ask that you produce Frugoli’s

complete disciplinary history.” (See Exhibit B, p. 2).

4. The City acknowledged, in a letter dated August 29, 2014, written pursuant to

Fed. R. Civ. P. 37, that:

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“The City has agreed to produce Defendant Frugoli’s complete employee complaint
history and all CR investigative files listed on that history. The employee complaint
history of any Chicago police officer indicates whether the allegations against that
officer for each complaint listed on that history were sustained (which is the only
finding for which discipline can be recommended), and the CR file itself will
indicate the finding and, if applicable, the recommended discipline.” (See Exhibit
C, p. 2).

There was no mention of CR Number 194190 from 1992 in Frugoli’s purportedly complete

employee complaint history. Defendant City produced a total of 18 CRs prior to the fatal April

10, 2009 collision. Curiously and inexplicably, two of the CRs, dated February 29, 1992 and

May 18, 1992, respectively, pre-dated CR 194190. None of the CRs produced during discovery

purported to involve alcohol-related offenses. None of the CRs produced during discovery

reflected offenses that were “sustained” against Defendant Frugoli resulting in any discipline.

5. In a Third Supplemental Request to Produce, Plaintiff Cazares requested CR files

for various Complaint Categories maintained by the Chicago Police Department. (See Exhibit

D). The City responded to questions (d), (e) and (f), asserting that …”Defendant City in

response to this request indicates that Defendant Frugoli’s complaint register files were

previously produced and bates stamped CITY000173-CITY002213.”

6. There were four years of discovery in this matter regarding Plaintiffs’ Monell

claim against Defendant City of Chicago, which included expert disclosures on this specific issue

for both sides.

JURY TRIAL

7. The jury trial of this matter commenced on November 27, 2017, with Plaintiffs

eliciting testimony from their police practices expert, Lou Reiter, on November 28 and 29, 2017.

Mr. Reiter testified before the jury regarding Defendant Frugoli’s 18 prior CRs, none of which

resulted in any discipline. Moreover, Mr. Reiter discussed the Chicago Police Department’s

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ability to administratively conduct a breathalyzer on a CPD employee in response to an

allegation that the officer was intoxicated. Mr. Reiter testified while the administrative

breathalyzer is available, it is not done on a routine basis as part of CPD’s investigation into

intoxicated employees.

8. On November 30, 2017, during adverse examination, Defendant Frugoli revealed

for the first time in sworn testimony that he had been disciplined and received a five-day

suspension for a CR in 1992 for an alleged battery offense. This was the first time, since the

filing of this case in 2013, where there was any mention or disclosure of a disciplinary finding

against Defendant Frugoli.

9. During sidebar, Defendant City of Chicago initially maintained no such CR

existed in their possession. This Court instructed Defendant City to look further. At 12:47p.m.

on December 4, 2017, Defendant City provided Plaintiffs with 116 pages detailing the 1992

missing CR that resulted in Defendant Frugoli’s five-day suspension. On the eve of Plaintiffs’

resting their case-in-chief, Plaintiffs were given CR 194190 from the August 8, 1992 incident.

DEFENDANT FRUGOLI’S CR 194190

10. CR 194190 reveals the details and subsequent investigation of an alcohol-related

incident involving Defendant Frugoli on August 8, 1992. Specifically, that, on August 8, 1992 at

approximately 1:20 a.m., while off-duty, Defendant Frugoli and two of his friends were involved

in an altercation in a bar, First Base Tavern, located at 3201 S. Normal. (OPS Summary Report

10/28/92, p.3). Defendant Frugoli was alleged to have punched two bar patrons, grabbed one by

the throat, threw them onto a pool table, hit them with pool sticks, threw bar glasses and broke

two bar stools. Id. at 1, 3, 4. When asked by the bartender to leave the bar, Defendant Frugoli

yelled, “Nobody messes with the Frugolis!” Id. at 5.

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11. As Defendant Frugoli walked out with his friends, CPD Sgt. Doris Byrd pulled up

in her marked squad car in response to the altercation. Id. at 3. Sgt. Byrd told Defendant Frugoli

to “hold it” and that she wanted to talk with him. Id. Defendant Frugoli took off in his car and

fled. With her lights flashing, Sgt. Byrd pursued Defendant Frugoli who refused to stop

immediately. He pulled over approximately a block away. Id.

12. Defendant Frugoli identified himself to Sgt. Byrd as a Chicago Police Officer. Id.

Sgt. Byrd ordered Defendant Frugoli to drive himself back to the scene where he was identified

as one of the offenders. Id.; (OPS Statement 10/26/92, Attachment #39). Sgt. Byrd then had

Defendant Frugoli drive himself to the 9th District Police Station where he was arrested, advised

of his rights and processed. (OPS Summary Report 10/28/92, p.3).

13. Sgt. Byrd testified that she believed Defendant Frugoli “had been drinking but he

was not intoxicated.” (OPS Statement 9/29/92, Attachment #32). Defendant Frugoli later,

himself, admitted that he had been drinking that night but “was not intoxicated.” (OPS

Statement 10/26/92, Attachment #39).

14. Two civilian witnesses also testified about Defendant Frugoli’s alcohol

consumption and intoxication. Defendant Frugoli’s friend, Michael Byrnes, who was also

involved in the altercation, admitted that he and Defendant Frugoli had consumed “[a] couple of

drinks.” (OPS Statement 9/15/92, Attachment #30). In response to being asked whether

Defendant Frugoli was intoxicated, Aldo Mandile, the owner of First Base Tavern, testified,

“Not really, he didn’t look it. From his actions he had to be but he walked straight and drove

straight.” (OPS Statement 9/9/92, Attachment #25).

15. However, at no time was Defendant Frugoli subjected to field sobriety tests or

administered a breathalyzer either at the scene or at the 9th District. (Complaint Review Panel

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Hearing of CR 194190, 9/26/94, p.4). Sgt. Byrd turned the investigation of this incident over to

Watch Commander Lt Heller and Acting Deputy Superintendent Donald Hilbring at the 9th

District. (OPS Summary Report 10/28/92, p. 4). Acting Deputy Superintendent Hilbring

presented Defendant Frugoli with the charges of Criminal Damage to Property and Simple

Battery. Id. at 5.

16. Eight CPD Officers responded to the scene (Officers Scott Salvin #8825, Angelo

Rodriquez Star #14155, A. Stinites Star #9711, Gary Heracek Star #12265, A. Pietrowski Star

#7786, Marianne Franklin Star #7157, Carolyn Humphrey Star #9645, and Alice Velazquez Star

#11138). None of them interviewed or investigated Defendant Frugoli. By the time they

arrived, Sgt. Byrd already had Defendant Frugoli in custody.

17. When OPS did the investigation into CR 194190 resulting from the 8/8/92

incident, OPS sustained the following violations against Defendant Frugoli:

Allegation #1: SUSTAINED – Violation of Rule 9 1 “Engaging in any unjustified verbal
or physical altercation with any person, while on or off duty” in that on 08 August 1992,
at approximately 0200 hours, at 3201 S. Normal, in front of the First Base Tavern, off
duty Officer Joseph Frugoli did punch Anthony Kuzamanich in the face and about the
body and grabbed his throat.

Allegation #3: SUSTAINED – Violation of Rule 1, “Violation of any law or ordinance”
in that on 08 August 1992, at approximately 0145 hours, at 3201 S. Normal, inside the
First Base Tavern, off duty Officer Joseph Frugoli entered the tavern and damaged two
bar stools, two pool sticks and broke some drinking glasses.

Allegation #4: SUSTAINED - – Violation of Rule 9 2 “Engaging in any unjustified verbal
or physical altercation with any person, while on or off duty” 3 in that on 08 August 1992,
at approximately 0145 hours, at 3201 S. Normal, inside the First Base Tavern, off duty

1
Rule 9 contained the following additional text: “COMMENT: Rules 8 and 9 prohibit the use of any
excessive force by any member. These rules prohibit all brutality, and physical or verbal maltreatment of
any citizen while on or off duty, including any unjustified altercation of any kind.”
2
See FN 1.

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Officer Joseph Frugoli engaged in unjustified physical altercation in that he was involved
in a fight with the patrons of the tavern.

Allegation #5: SUSTAINED – Violation of Rule 3. “Any failure to promote the
Department’s efforts to implement its policy or accomplish its goals” in that on 08
August 1992, at approximately 0145 hours, at 3201 S. Normal, inside the First Base
Tavern, off duty Officer Joseph Frugoli was involved in a fight and left the scene trying
to elude police upon seeing a squad car approach and failed to stop when ordered to
thereby preventing the Department from accomplishing its goal of a full police
investigation of the alleged incident.

(OPS Summary Report 10/28/92, pp.7-8)

18. At the time of his arrest, there was no investigation conducted regarding

Defendant Frugoli’s alcohol consumption, intoxication or operation of a motor vehicle under

those circumstances. As a result, CR 194190 did not address any allegations involving alcohol

use. The sustained violations of Article V of the Police Board of Chicago’s Rules of Conduct

pertained to Rules 1, 3 and 9. They did not address Rule 15 of Article V which prohibits

“Intoxication on or off duty.”

ARGUMENT

I. Defendant City of Chicago Committed a Discovery Violation.

At this juncture, the Court must award sanctions because Plaintiffs have been seriously

prejudiced. The newly disclosed CR goes directly to the elements the Plaintiffs need to provide

to prevail. Specifically, that prior to the April 10, 2009 fatal collision, the City of Chicago had

one or more of the following policies:

• maintained a code of silence where officers were treated differently than ordinary
citizens; or
• failed to adequately investigate officer misconduct; or
• failed to adequately discipline officers for their misconduct; or
• failed to terminate officers for their misconduct.

This evidence is also related to the causation element: That one or more of the policies described

above caused Joseph Frugoli to drink and drive on April 10, 2009, leading to the injuries and

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death of Andrew Cazares and Fausto Manzera. Finally, this evidence goes to Defendant City of

Chicago’s knowledge that it was highly predicable that officers would drink and drive which

could injure or kill other motorists without adequate investigation, discipline, or termination of

its officers because it was highly predictable even without a pattern of similar constitutional

violations.

Federal Rule of Civil Procedure 26(e)(1)(A) states that a party “who has responded to an

interrogatory, request for production, or request for admission – must supplement or correct its

disclosure or response . . . in a timely manner if the party learns that in some material respect the

disclosure or response is incomplete or incorrect.” “Moreover, ‘the federal discovery rules place

a duty on a party to turn over not only proper materials of which he is aware, but also those of

which he reasonably ought to have been aware.” Ritchie Risk-Linked Strategies Trading

(Ireland), Ltd., 280 F.R.D. 147, 156 (S.D.N.Y. 2012) (quoting Arthur v. Atkinson Freight Lines

Corp., 164 F.R.D. 19, 20 (S.D.N.Y. 1995)) (emphasis in original).

Under Rules 26(e) and 37(c), federal courts may level appropriate sanctions against a

party, and their attorneys, that fail to timely produce, supplement, or correct its discovery

responses. Colyer v. City of Chicago, No. 12-C-0485, 2016 WL 25710, at *14 (N.D. Ill. Jan. 1,

2016). Rule 26(g), states that an attorney’s signature on discovery responses, “certifies that the

lawyer made a reasonable effort to assure that the client has provided all of the information and

documents available to him that are responsive to the discovery demand.” Fed. R. Civ. P. 26(g).

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. See Profile Gear Corp. v.

Foundry Allied Industries, Inc., 937 F.2d 351 (7th Cir. 1991).

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Here, Defendant City of Chicago, through its counsel, failed to make a reasonable effort

to assure that they had provided all information and produced all documents requested and

available regarding Defendant Frugoli’s internal investigations. Plaintiffs’ discovery request was

narrowly tailored for “[a]ny and all Complaint Register files, Log Numbers, Summary

Punishment Action Request Summaries, or Summary Punishment Action Requests against

Joseph Frugoli for any reason whatsoever.” (See Ex. A, p. 3). This request is clear and direct and

not limited in any way which that suggest that Plaintiffs would not be entitled to this CR. Given

the broad mandate of the Federal Rules of Civil Procedure regarding discovery and the nature of

this case, the facts underlying the 1992 CR, and the wording of the Request to Produce, Plaintiffs

were clearly entitled to these materials.

Defendant City’s rationale on why CR 194190 was not produced is unpersuasive and

seemingly disingenuous. Defendant suggests that sometime in the early 2000s there was a

change in computer system, and this CR was not transferred onto the new system.

This does not explain why the City was able to produce all of Frugoli’s CRs from the

1990s, which included two CRs from February and May of 1992, but not the CR from August

1992. This is not the first time Defendant City has failed to turn over damaging discovery in a

timely fashion. See Turner v. City of Chicago, No. 15 CV 06741, 2017 WL 552876, at *1 (N.D.

Ill. Feb. 10, 2017) (where Defendant, City of Chicago, failed to produce all CR files and internal

investigation relating to defendant officer, where IPRA produced what was purported to be the

entire CR and investigative file on said officer, constituting a significant discovery violation);

LaPorta v. City of Chicago, No. 14 C 9665, 2016 WL 4429746, at *3 (N.D. Ill. Aug. 22, 2016)

(where City of Chicago failed to disclose an incident where defendant officer misused his

firearm in 2014, where 2015 discovery requests centered around misconduct and misuse of

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firearm by defendant officer); Colyer v. City of Chicago, No. 12-C-0485, 2016 WL 25710, at *2

(N.D. Ill. Jan. 1, 2016) (where City of Chicago knew discoverable items may be available and

intentionally withheld information from Plaintiffs and did not comply with discovery rules by

failing to make a reasonably inquiry when searching for a recording and related documents).

Defendant Frugoli’s CR 194190 establishes the Code of Silence is alive and well in the

Chicago Police Department and has been since the infancy of Frugoli’s employment as a police

officer in 1992. CR 194190 contains information that Defendant Frugoli had been drinking and

driving at 2:00 a.m. and fled the scene in his vehicle. No Standardized Field Sobriety Testing or

breathalyzer was administered to Frugoli. There was no arrest, investigation, or discipline

concerning the information regarding Defendant Frugoli’s alcohol consumption and driving.

Like the circumstances “investigated” in CR 194190, both traffic crashes in January 2008

involving Defendant Frugoli occurred in the early morning hours where there was no arrest,

investigation, or discipline regarding Frugoli’s alcohol consumption and driving. After the

January 27, 2008 crash, Sergeant Smith allowed Frugoli to leave the crash scene by driving him

to his residence. Defendant Frugoli’s propensity to flee and avoid responsibility was at its

climax on April 10, 2009 when an intoxicated Frugoli left leaving the scene of the crash that

killed two boys, and subsequently no Chicago Police officers observed any signs of intoxication

or impairment. These incidents exemplify the two sets of rules enforced by the Chicago Police

Department: one set of rules imposed for ordinary citizens, and the rules for Chicago police

officers. Had a civilian been involved in the same situation as Defendant Frugoli was in August

of 1992, that civilian would never have been permitted to drive back to the scene and then to the

station and most certainly would have been subjected to field sobriety testing and/or a

breathalyzer.

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This 1992 incident set in motion, at the early stages of Defendant Frugoli’s career as a

Chicago Police officer, the tragic consequences of the fatal collision on April 10, 2009. The

way the Chicago Police Department handled CR 194190 gave Frugoli the impunity to act

without fear of consequence for his actions. These 3 crashes, all of which occurred in the early

morning hours, illustrate the progression of Defendant Frugoli’s empowerment from not being

held accountable by the CPD. The consequences to his victims escalated in severity over the

course of those years, from battery, to hospitalizing an on-duty police officer to the fiery crash

resulting in the deaths of Andrew Cazares and Fausto Manzera. The fact that CR 194190 was

discovered after a search of the City’s database in the middle of trial is inexplicable and

unjustified.

II. The City’s Violation of Rule 26(e) is Not Substantially Justified.

Rule 37(c) states that if a party violates Rule 26(e), the Court may order sanctions,

“unless the failure was substantially justified or is harmless.” The Court may impose sanctions,

which include, but are not limited to informing the jury of the party’s failure to disclose

evidence, prohibit the disobedient party from supporting or opposing designated claims or

defenses, or rendering a default judgment against the disobedient part. See Fed. R. Civ. P.

37(b)(2)(A), 37(c)(1)(B). If Plaintiffs received this CR during the course of discovery, there

would have been additional depositions and discovery which could have materially impacted the

litigation in this case.

This Court must consider what effect the challenged conduct has on the course of the

litigation. Here, Defendant City’s failure to disclose a relevant, pertinent CR has harmed and

severely prejudiced Plaintiffs’ case. Defendant’s theory of the case, as presented to the jury in

opening statements, is that the City of Chicago consistently disciplines and investigates officers

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who are accused being intoxicated and driving. In the middle of trial, Plaintiffs were given CR

194190 pertaining to Defendant Frugoli where there was no discipline or investigation about his

alcohol consumption and driving in the 1992 incident. This contradicting information confuses

and misleads the jury.

Plaintiffs’ expert Lou Reiter testified that Defendant Frugoli had 18 CR’s entered against

him, none of which were sustained. He opined that this was evidence that the Chicago Police

Department does not investigate CR’s sufficiently, and consequently officers are emboldened to

commit misconduct, knowing that they are not going to be charged with infractions of laws or

rules even if there is a CR against him or her. CR 194190 concerns Frugoli’s alcohol use and

him operating a vehicle, matters germane the subject of this lawsuit. In CR 194190, Frugoli was

driving after drinking, and the Chicago Police Department did not perform a breathalyzer. Had

CR 194190 been timely produced, Mr. Reiter likely would have discussed how there was no

investigation or discipline in CR 194190 about Frugoli’s alcohol use while operating his vehicle;

this was yet another example of the Chicago Police Department’s failure to investigate

misconduct by an officer, putting the Department on notice in 1992 that Frugoli was a problem

drinker.

The issue was compounded when Plaintiffs’ counsel adversely examined Defendant

Frugoli on the 18 CR’s that resulted in no discipline, only to be contradicted in front of the jury

that Frugoli was punished for a CR in 1992. Certainly Plaintiffs’ counsel would have conducted

his examination of Frugoli in such a way as to avoid having the adverse witness flaunt his

knowledge of a CR report and subsequent discipline that Plaintiffs’ attorneys were not in

possession of.

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CR 194190 identifies yet another example of a lost opportunity to identify misconduct

and a problematic trend, and to hold officers, specifically in this case Defendant Frugoli, and the

Chicago Police Department accountable when misconduct occurs. If Plaintiffs were given this

information years ago, Plaintiffs could have investigated the possibility if CR 194190 should

have subjected Defendant Frugoli to an intervention by some program used to detect early

identification of officers who are accumulating several complaints or other incidents warranting

some form of supervisory alert. We now know that Defendant Frugoli, within two years of

joining the Chicago Police Department on August 27, 1990, received four CRs in a nine-month

timespan in 1992. This specific CR which Defendant City of Chicago failed to tender in

discovery precisely relates to Plaintiffs’ theory of the case; Defendant Frugoli admits to

consuming alcohol the night in question and operating his vehicle when he fled from the

investigating Sergeant. CR 194190 confirms there was no administrative breathalyzer or any

further investigation, discipline or effort to terminate Frugoli concerning his alcohol use and

operation of this car during the incident. There is no documentation that Defendant Frugoli had

any form of intervention by the Department or any supervisor.

Moreover, Defendant Frugoli received a fifteen-day suspension for the August 8, 1992

CR. That suspension was later reduced to a ten-day suspension following a grievance. Because

Plaintiffs were unaware of this CR, they were prejudiced in that they were unable to conduct

discovery and investigate the adequacy of the discipline imposed. The Chicago Police

Department has no clear standards to decide the appropriate level of discipline, and oftentimes

the discipline imposed is summarily reduced. As the Police Accountability Task Force noted,

the inconsistent disciplining of employees is an impediment for “the reporting of misconduct

when an officer is found to have engaged in serious misconduct has almost no disruption to time

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in duty and sends a signal to the rank and file generally that the disciplinary system lacks rigor

and bite.” (See PATF Report, p. 91). Plaintiffs were unable to explore this theory over the

several years discovery was conducted on the Monell issue in this case.

III. Plaintiffs are Entitled to a Remedy for Defendant City’s Conduct.

Based on the conduct of Defendant City, Plaintiffs are entitled to one or more of the

following remedies. Plaintiffs request that this Court issue a mistrial, since evidence that goes to

the heart of their case was just produced. Plaintiffs have suffered irreparable prejudice, and

cannot recover in the eyes of the jury. In the alternative, Plaintiffs request one of the following:

A. Default Judgment

Rule 37 of the Federal Rules of Civil Procedure specifically authorizes courts to issue a

default judgment against a party who fails to obey a discovery order, Fed.R.Civ.P.

37(b)(2)(B)(vi). In addition, the inherent power of federal courts “to manage their own affairs so

as to achieve the orderly and expeditious disposition of cases” encompasses “the ability to

fashion an appropriate sanction for conduct which abuses the judicial process,” as well as the

“power to punish for contempt.” Chambers v. NASCO, Inc., 501 U.S. 32, 43–45, 111 S.Ct. 2123,

115 L.Ed.2d 27 (1991). Although a default judgment is indeed considered “draconian,”

Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir.2003), it is warranted “when there is a clear

record of delay or contumacious conduct.” Id. Moreover, a default judgment is an appropriate

discovery sanction against a party who has shown “bad faith, willfulness, or fault.” Id. at 467.

Similarly, fault suggests “objectively unreasonable behavior” rather than a “mere mistake or

slight error in judgment.” Long v. Steepro, 213 F.3d 983, 987 (7th Cir. 2000). In the Seventh

Circuit, a district court must determine by a preponderance of the evidence that at least one of

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these blameworthy findings applies in order to impose the most severe sanctions. See Ramirez v.

T&H Lemont, Inc., 845 F.3d 772, 777 (7th Cir. 2016).

Plaintiffs move this Court to enter a default judgment against Defendant City for

withholding damaging evidence that goes to the heart of Plaintiffs’ case. Plaintiffs experts have

already concluded their reports and testimony, and cannot rebut this new evidence produced in

violation of discovery rules and procedures. As it only took the City an extra day and a half to

find the “missing” file, it clearly could have been uncovered and produced in a timely manner.

This evidences clear bad faith and misconduct on the part of the City, and a default judgment is

appropriate. A finding against the City for liability is warranted.

B. Bar Defendant City from Calling Witnesses and Experts

Defendant City should be barred from presenting their defense witnesses, including

expert Jeffrey Noble. Federal Rule 37 allows for the disobedient party to be prohibited from

supporting or opposing designated claims or defenses. The City should be disallowed from

presenting its witnesses and experts that proffer and support the idea that “the Chicago Police

Department properly conducts preliminary investigations of traffic-related incidents when the

driver of a motor vehicle is suspected of having consumed alcohol or of being intoxicated,

including when the driver is a member of the Chicago Police Department; the Chicago Police

Department, through its Bureau of Internal Affairs properly conducts administrative

investigations of Chicago Police Officers (including off duty officers) who are accused of

driving while intoxicated and adequately disciplines those officers in cases when this accusation

is sustained;” that the City is not deliberately indifferent by failing “to properly investigate and

discipline Chicago police officers who drive while intoxicated; that there is no “code of silence.”

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See Defendant City’s Rule 26(a) disclosures. As the withheld CR goes to all of these defenses

and witness statements/testimony, the City should be barred from advancing them.

Plaintiffs, JOSE ANDRES CAZARES, by and through his attorneys, CAVANAGH

LAW GROUP, and FAUSTO T. MANZERO, by and through his attorneys, COONEY &

CONWAY, move this Court, pursuant to Fed. R. Civ. P. 26 and 37, for an order imposing

sanctions against Defendant City of Chicago and their counsel for failing to respond and produce

documents relating to a 1992 internal investigation of Joseph Frugoli, given a Complaint

Register (“CR”) number 194190, from an incident that occurred on August 8, 1992 and for any

other relief this Court deems just.

Respectfully submitted,

_____________________
Michael J. Sorich #6279838
CAVANAGH LAW GROUP
161 N. Clark St., Suite 2070
Chicago, IL 60601
(312) 425-1900
mjs@cavanaghlawgroup.com

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