1

1 IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION

3
DONNA MOORE, as legal )
4 custodian of her son, J.M., a )
minor, and her daughter, A.M., )
5 a minor, ) No. 07 C 5908
) Chicago, Illinois
6 Plaintiffs, ) March 4, 2009
) 9:15 a.m.
7 vs. )
)
8 ROBERT SMITH, JAMES EVITT, )
CITY OF CHICAGO, STACEY SMITH, )
9 and EDWIN GORMAN, )
)
10 Defendants. )

11 TRANSCRIPT OF PROCEEDINGS - MOTION

12 BEFORE THE HONORABLE ROBERT W. GETTLEMAN

13 APPEARANCES:

14 For the Plaintiff: PEOPLE'S LAW OFFICE

1180 North Milwaukee Avenue
15 Chicago, Illinois 60622
BY: MR. G. FLINT TAYLOR, JR.
16 MR. BENJAMIN H. ELSON

17 For Defendant City: DYKEMA GOSSETT PLLC

10 South Wacker Drive
18 Suite 2300
Chicago, Illinois 60606
19 BY: MR. TERRENCE M. BURNS
MR. DANIEL M. NOLAND
20
For Defendant City: CITY OF CHICAGO
21 30 North LaSalle Street
Chicago, Illinois 60602
22 BY: MS. RITA C. O'CONNOR

23 Official Reporter: JENNIFER S. COSTALES, CRR, RMR

219 South Dearborn Street
24 Room 1706
Chicago, Illinois 60604
25 (312) 427-5351
 2

1 (Proceedings in open court.)

2 THE CLERK: 07 C 5908, Donna Moore versus Officer Smith,

3 motion for sanctions, motion to supplement.

4 MR. BURNS: Good morning, Your Honor.

5 Terrence Burns and Daniel Nolan appearing on behalf of

6 the City of Chicago.

7 MS. O'CONNOR: Rita O'Connor on behalf of the City.

8 MR. TAYLOR: Good morning, Judge.

9 Flint Taylor and Ben Elson on behalf of the plaintiff.

10 This is our motion or motions, Judge. It's a motion for

11 sanctions and also a motion to supplement.

12 THE COURT: Well, I'll grant the motion to supplement.

13 Mr. Burns has already supplemented. I got it very late

14 yesterday, I got a pleading from him, which I've reviewed this

15 morning.

16 Well, is there anything you want to add, Mr. Taylor?

17 MR. TAYLOR: Well, Judge, I take it that you've read our

18 motion, and I don't need to rehash what are both our factual

19 predicate and our relief that we seek is. We're seeking

20 sanctions as we've both illuminated in the motion for an

21 eight-month pattern of delay and obstruction that culminated in

22 the direct and now admitted defiance of orders by this Court and

23 by Judge Valdez by the city itself and by its chief policy-making

24 police official, Mr. Weis.

25 We think that we've made out in the pleading bad faith.

 3

1 The Seventh Circuit has said deliberate defiance of an order

2 itself is bad faith. But we feel that also the false

3 representations to counsel, us, and to the Court, Judge Valdez

4 particularly, over a period of time that the City would comply if

5 and when all of these various motions to reconsider had been

6 dealt with, and then, in fact, they had no intention apparently

7 of doing so, as soon as they reached the end of the line, they

8 filed the Weis document which, in fact, said: Thanks, but no

9 thanks, we will not comply.

10 I think also the bad faith is shown, Judge, by the

11 transparent and often rejected reason posited by the chief of

12 police and the City previously, that being the fact of privacy,

13 safety, and morale, Judge. You rejected on a couple of

14 occasions, Judge Valdez rejected it on a couple of occasions, and

15 then Mr. Weis brought it in again.

16 I think this is a simple two-word answer that the Court

17 gave for that, and that was protective order. They make a big

18 deal about how this is somehow going to bother morale, it's going

19 to bother safety, when, in fact, the documents are being turned

20 over to us, not turned over to the public. The Court recognized

21 that last time we were in court here. So that's an argument

22 that's very transparent. It's one that shouldn't have been

23 repeated, and certainly shouldn't be the basis for a contemptuous

24 activity by Mr. Weis.

25 And I also want to say, Judge, that they attempt to put

 4

1 us in a bag that the only reason that we want these documents is

2 so we can check them with prior lists so that we can see if there

3 is a repeater that perhaps spans 10, 15, 20 years. But as we

4 argued from the beginning, and as Judge Valdez found in her

5 order, I believe her October order, that that was only one of

6 several reasons why we need these documents.

7 Obviously we want to do case histories. We want to

8 study the worst repeaters. Judge, we're talking about repeaters,

9 if I might, they did give us lists without names, we're talking

10 about ones with 65 CRs. We're talking about ones with 62 CRs and

11 14 excessive force; 44 CRs, 20 excessive force. I can go right

12 down the list.

13 And we're talking about, Judge, a list not of thousands

14 of officers that have six or more excessive force complaints, 199

15 officers are on that list. And we're talking about, Judge, the

16 greater list that they gave us of the six or more that have --

17 that aren't limited to excessive force. We're talking about 2500

18 officers. So then we have 11,000 officers that aren't on those

19 lists, Judge.

20 And, in fact, the reason that we picked that amount of

21 officers, of complaints was because that's the amount that the

22 City always looked at when they were evaluating repeaters. That

23 doesn't mean that we're going to deal with or care about 2500

24 repeaters. But we have to find the worst in that, not only in

25 numbers but in what they did.

 5

1 If we don't have their names, we can't look at their

2 backgrounds in terms of civil suits. We can't look at who their

3 partners are. We can't look at the sustained, not sustained,

4 what the police board did. All of those things, Judge, require

5 that we get the names. And as you pointed out, in the past,

6 we've never had a problem with it, and we don't intend to have a

7 problem with it with these lists either.

8 And so as Judge Valdez recognized, and she used the term

9 "repeater" as well, it's for the jury, the experts, and the

10 plaintiffs' lawyers to determine among those on the list who are

11 the ones that are the worst of the worst. And that's the ones

12 that we're concerned with. Those are the ones we want to show

13 they were not properly disciplined. And that's why it's so

14 important to our case and to our Monell claim.

15 And that's why, Judge, we've asked for the sanctions

16 that we've asked for. We've asked for the sanction of finding of

17 the various allegations we've made in our complaint with regard

18 to Monell as admitted. We've asked that based on those findings

19 that default be entered on the City on that claim. We've asked

20 that there be certain monetary sanctions to pay us for these

21 eight to ten months of going around the merry-go-round again and

22 again and again and again and again hearing the same arguments

23 and dealing with them. We've asked for it to be enhanced as a

24 punishment. And we've also asked for discovery on the issue of

25 bad faith, because the City has not, in fact, conceded, and that
 6

1 discovery would include the deposition of Jodi Weis.

2 Finally, Judge, I would point to the fact that the City

3 itself cites a case, and the case says there is three things to

4 look at for sanctions: Prejudice, deterrence, and punishment.

5 Prejudice, I think it's obvious. We've spent ten

6 months, we've spent hundreds of hours chasing this evidence that

7 should have been ours from the beginning. You look at 20 years

8 of history, Judge, and each time we've sought this evidence, the

9 City has turned it over until this time. And they then played

10 games with us for eight to ten months before they then took the

11 position in court that they took.

12 Secondly, as the City points out in the Seventh Circuit

13 case, deterrence, and the third is punishment, well, Judge, in

14 both of those instances, we're not talking about some individual

15 litigant here who comes before the Court once. We're talking

16 about the City of Chicago. We're talking about the police chief.

17 And we're talking about the Corporation Counsel of the City of

18 Chicago.

19 There are other cases, important cases before Judge

20 Shadur, before other judges in this courtroom where similar

21 issues are being litigated. If the City is allowed to get away

22 without sanctions in this case, there will be no deterrence to

23 the City in other cases.

24 And as well in terms of punishment, in terms of

25 punishment, Judge, there has to be some recrimination for this

 7

1 kind of conduct. If I were to do this, Judge, if a plaintiff's

2 lawyer were to do this, to bring 13 different pleadings and then

3 at the end come in and say, "Oh, well let me bring the main

4 plaintiff in now. He's going to argue the same thing that the

5 lawyers have argued for eight months." I'm afraid that this

6 Court would not treat me kindly. And I don't think that the City

7 of Chicago, who is in front of you all the time and who has a

8 track record, Judge, not only in this case, but in other cases in

9 discovery should be allowed not to be punished in a situation

10 like this where the police chief has, and there is no other kind

11 way to put it, has flaunted this Court and flaunted Judge Valdez

12 and given a specious reason for doing so.

13 So that is our position, Judge, and we ask that you

14 grant each and every sanction that we have sought.

15 THE COURT: All right. I'm going to ask you to sit down

16 for a second. I'm going to take care of this other case just

17 very briefly.

18 MR. BURNS: Yes, sir.

19 (Whereupon the Court heard other matters on his call.)

20 THE COURT: All right. Mr. Burns?

21 MR. BURNS: Judge, I'd like just to address some of the

22 points that were raised by counsel. First of all, to suggest

23 that there has been a track record, this has been, and I know

24 you've dealt with the City on many matters, you've dealt with

25 myself on many matters, this is an isolated incident. And there

 8

1 has been consistently from the beginning to this point in time a

2 statement as to why we feel the names of the officers become

3 irrelevant.

4 The fact is as I listened to counsel's argument, he

5 seemed to be saying that very thing, "I don't need 10,000 names.

6 I just need a select number," something that we have offered to

7 him throughout the discovery. We would sit down, work with him

8 in terms of the disclosure.

9 I should also point out, Your Honor, we have, in fact,

10 provided those names, albeit in redacted fashion where we

11 separate the names of the officers. But we've also held out to

12 counsel that we would sit down and work with him with regard to

13 certain names that appeared on prior lists and now reappear on

14 the current list to try to come to some resolution so he would

15 not be prejudiced in the prosecution of this case.

16 In terms of this case, it seems as though that counsel

17 is asking for extreme remedies. When you seek to look what is

18 the prejudice to him, how is this defeating his opportunity to

19 present his claim, he has the statistical information. We talked

20 about that when we were before you on the last time, so I won't

21 repeat that information to the Court. But that's information

22 that he does have, is available.

23 If there is something further beyond that, we're going

24 to work with him, and we can work together. But, again, as I

25 heard the argument today, those additional names of people who

 9

1 have nothing to do with this case, are not of central concern,

2 why are we disclosing their names? It becomes irrelevant to the

3 prosecution at hand.

4 We have always indicated to counsel that we would work

5 with him and try to resolve this. This is something when we come

6 to the Court, I recognize the Court's position, we ask that the

7 sanctions, whatever the Court is considering, that they not be

8 extreme. And I think the citations that counsel has suggested

9 are extreme given the nature of what's occurred.

10 Keeping in mind that this is not as he's suggested a

11 fabricated or manufactured suggestion to the Court, the

12 Superintendent would not, he has tremendous regard for this

13 Court, and law enforcement would not come before the Court

14 without a legitimate reason and express the view that it did.

15 When this happened, we immediately filed with this Court

16 the statement from the Superintendent as to his basis and his

17 reason. And those were in good faith. They have been in good

18 faith. They have been consistent throughout the pendency of this

19 litigation, Your Honor.

20 I ask the Court to consider that as well as the other

21 factors that are raised throughout the process.

22 While counsel can ridicule the Superintendent, call it

23 transparent, belittle what his reasoning is, his reasons are

24 legitimate. They are privacy, morale, and safety concerns that

25 he raised via his declaration and the recent statement to the

 10

1 Court.

2 THE COURT: Mr. Burns, let me just -- I don't need a

3 reply -- let me just tell you a couple of things. First of all,

4 you know we've had a history together. You've appeared in many

5 cases and done a fine job, and I respect your professionalism and

6 your competence. It has nothing to do with you.

7 But everything you just said is almost irrelevant. That

8 horse is out of the barn. Those issues have been decided. You

9 yourself acknowledged that you'd be producing the documents, this

10 is on February 17th, that you were ready to do so, that you had

11 them. You'd been ordered to do so. And you said you'll abide by

12 whatever decision I make on the motion.

13 This is basically a fourth motion to reconsider Judge

14 Valdez's ruling. I've reconfirmed it now three times. I'm

15 reconfirming it again.

16 The document that you filed on behalf of the City, I

17 mean, you have some explaining to do about why you said, made a

18 representation to the Court which apparently was incorrect,

19 that's number one. Number two, your statement, the statement

20 that Jodi Weis -- is it Weis or Weis?

21 MR. BURNS: Weis.

22 THE COURT: -- Weis and his affidavit filed with the

23 Court, document number 184 on February 20th, is basically in my

24 view a direct contempt of the Court. It's not even an indirect

25 contempt.
 11

1 I know that Mr. Taylor hasn't asked for a finding of

2 contempt. He doesn't have to. I believe it's the Court's

3 responsibility, regardless of the civil sanctions that may be

4 imposed in this case or any other, to protect the integrity of

5 its orders. And this is, it's more than flaunting the order,

6 it's saying I am going to be in contempt of the Court.

7 If this is some strategy to get a discovery order, and I

8 agree with Mr. Taylor, a rather routine discovery order given the

9 history of this type of litigation in this court, to be reviewed

10 by the Court of Appeals, it is ill advised in my view.

11 We have the chief law enforcement officer of the City of

12 Chicago basically picking and choosing the orders of the federal

13 court that he will obey or disobey, and he's chosen to disobey

14 this order. I believe he is in direct contempt of the Court.

15 It's not even a rule to show cause situation, because he has told

16 me he will not obey the order of the Court to turn over these

17 documents, which as Mr. Taylor points out are very much or

18 identical to the type of documents that he has turned over, that

19 the City of Chicago has turned over on at least 29 occasions that

20 you know of and probably more and that we've dealt with before.

21 I don't care whether your sensitivities about the name

22 calling that you accuse the plaintiffs' lawyers of doing might

23 somehow hurt morale. I don't know how that happens. There is a

24 lot worse names that are leveled at the police in this City than

25 "repeater." But even crediting Mr. Weis with a good-faith belief

 12

1 that this would hurt morale, it's his job to deal with his own

2 officers.

3 And I respect the police department in this City, and I

4 respect Mr. Weis's job, it's a tough job. But it makes it a lot

5 tougher when he comes into a federal court and says "I'm not

6 going to obey your order."

7 You've made your arguments. You've made them repeated

8 times. The Court has considered them repeatedly. I have

9 considered them. Judge Valdez has considered them. You reach a

10 point, just like you acknowledged to Judge Valdez, you know, if I

11 deny the motion to reconsider, that's it, that's the end of the

12 game, and we'll turn them over.

13 All I can assume is that your client didn't agree with

14 the advice you gave him. So I think I have to do this, I have to

15 compel compliance with that order. That's my first job before I

16 even deal with the appropriate sanctions, and there will be

17 sanctions, civil sanctions.

18 But before I deal with that, he is in direct civil

19 contempt of this Court, and it's my job, just as when other

20 people on matters of principle, misguided or otherwise, disobey

21 orders of the Court, we are to take measured steps to enforce the

22 orders before deciding on what type of sanctions to apply.

23 I am, therefore, directing that the Superintendent be

24 present in court at 9:00 o'clock on Friday morning so that he can

25 at least address the Court in person to explain himself to me.

 13

1 He has filed an affidavit.

2 Mr. Taylor wants discovery. I don't know if you need

3 any discovery. His position is pretty clear.

4 But that affidavit absolutely subjects him to

5 examination about why he reached those conclusions. I could

6 order discovery, I think it's just prolonging a very serious

7 situation and a conflict between the City and the Court that the

8 Court is going to win. I mean, there is no question about this.

9 To reargue the merits of this discovery dispute is

10 inappropriate at this time. The order is the order. I'm not

11 reconsidering it. You have nothing to negotiate with Mr. Taylor

12 about how to comply with it. You have to comply with it.

13 So I want the superintendent here at 9:00 o'clock on

14 Friday morning in person to address the Court.

15 MR. TAYLOR: Judge, could I ask that it be Monday? I'm

16 in Champaign on a deposition. I would very much like to be here.

17 THE COURT: Well, I want you to be here, too.

18 MR. TAYLOR: Monday at 9:00 o'clock, would that be all

19 right?

20 THE COURT: I'm on trial. But the trial won't begin

21 until, we usually start at 10:00. So I'm not going to postpone

22 the trial for this. We don't go on Fridays, so that's why Friday

23 was easier for me.

24 MR. TAYLOR: I'm really --

25 THE COURT: Pardon me?

 14

1 MR. TAYLOR: I'm really sorry, but I don't think I can

2 change it. It's very important. A defendant is giving a

3 deposition.

4 THE COURT: We'll make it Monday at 8:45 so that we have

5 time enough to do this before we start the trial on that day.

6 I don't want any more papers. I don't need any more

7 papers in this case. But I want him here.

8 I know you've asked for sanctions or you've hinted that

9 you wanted to ask questions of the Corporation Counsel,

10 Ms. Georges. She's acting as a lawyer whether of record or not,

11 she probably is of record, and I think that her advice to the

12 superintendent would be privileged anyway, and I don't think it

13 will be appropriate. If she's giving him advice, he's the one

14 who is in contempt, not her. I don't think it would be

15 appropriate to examine her, unless she's willing to waive the

16 privilege somehow.

17 But this is obviously a very serious matter. I don't

18 want you, Mr. Burns, to be hanging out there the way you are in a

19 sense, because you made this representation to the Court, and I'm

20 sure you made it in good faith. But right now I think the only

21 thing for me to do is to see whether or not I can compel

22 compliance with this order, and if not, then determine what type

23 of sanctions to impose both in the civil case itself and by the

24 Court to compel compliance. So that's what is going to happen.

25 I'm going to enter and continue, well, your motion to

 15

1 supplement is granted. I'll accept your latest filing, which is

2 document 193, response in opposition.

3 I don't know whether you want to file a reply. I don't

4 think I need one.

5 MR. TAYLOR: No, I don't think so, Judge. I think that

6 everything has been aired.

7 THE COURT: I'll accept that as a response to your

8 motion. And I'll see you at 8:45 on Monday, March 9th.

9 MR. TAYLOR: Judge, is it our understanding that you

10 have held him in contempt or not until you hear from him?

11 THE COURT: I'm making an observation, because if he

12 comes in and purges himself of the contempt, then there would not

13 be a need for a holding.

14 MR. TAYLOR: Right.

15 THE COURT: I'm giving him until Monday to do so.

16 MR. TAYLOR: To purge?

17 THE COURT: Otherwise I think ordinarily if you have a

18 discovery dispute or, you know, some sort of conflict with an

19 order, if you've ordered an audit in a collection case or

20 something like that, and they don't comply, you have a rule to

21 show cause, because you haven't heard directly from the potential

22 contemnor.

23 In this case I've heard twice now. I have two pleadings

24 on the record, including an affidavit from the Superintendent

25 saying that he will not obey an order. I think that's direct

 16

1 contempt of Court as if he were standing here and said that.

2 So I don't know, this is not really a rule to show cause

3 proceeding. It's a contempt proceeding. And an order of

4 contempt will be entered, unless he purges himself of the

5 contempt on that day.

6 Very frankly, I think you, Mr. Burns, and Ms. Georges

7 and everybody else involved with this should take a deep breath

8 and a step back and try to avoid this type of consequence in a

9 case like this, which is a fairly routine excessive force case.

10 None of them are totally routine, of course. They're all

11 important. But in this case, I don't see using this case as a

12 vehicle to try to test the enforceability of orders of this

13 Court.

14 That's all I'm going to say right now, and I'll see you

15 back here on Monday at 8:45.

16 MR. TAYLOR: Thank you, Judge.

17 MR. BURNS: Thank you, Your Honor.

18 (Proceedings concluded.)

19 C E R T I F I C A T E
I, Jennifer S. Costales, do hereby certify that the
20 foregoing is a complete, true, and accurate transcript of the
proceedings had in the above-entitled case before the Honorable
21 ROBERT W. GETTLEMAN, one of the judges of said Court, at Chicago,
Illinois, on March 4, 2009.
22
/s/ Jennifer Costales, CRR, RMR
23 Official Court Reporter
United States District Court
24 Northern District of Illinois
Eastern Division
25