IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD, ILLINOIS

Estate of AMON PAUL CARLOCK, JR., deceased )

By Mary L. Andreatta-Carlock, Executor, )

)

Plaintiff, )

vs. ) No. 3:08-cv-03075

)

NEIL WILLIAMSON, AS SHERIFF OF SANGAMON )

COUNTY; ANTHONY SACCO, CHIEF DEPUTY; )

TERRY DURR, JAIL SUPERINTENDENT; WILLIAM ) Judge Sue Myerscough

STRAYER, ASSISTANT JAIL SUPERINTENDENT; )

LT. RON BECKNER, ADMINISTRATOR OF )

SANGAMON COUNTY JAIL; LT. CANDACE CAIN; )

LT. TAMMY POWELL; SGT. TODD GUY; CO )

KEVIN FURLONG; NURSE LEE ANNE BRAUER, ) With Jury Demand

R.N.; NURSE NIECEY WEST, LPN; NURSE )

LUCY RAMSEY, LPN; JOSEPH MAURER, M.D., )

CHAUNCEY C. MAHER III, M.D., ) ORAL ARGUMENT AND

) EVIDENCE REQUESTED

Defendants. )

PLAINTIFF’S BRIEF IN SUPPORT OF

RENEWED MOTION FOR SANCTIONS AND

MOTION FOR APPOINTMENT OF A SPECIAL MASTER

Plaintiff, Estate of Amon Paul Carlock, Jr., deceased, by Mary L. Andreatta-Carlock,

Executor, for herself as surviving spouse and other beneficiaries of the estate, by her attorneys of

Record submits this brief in support of her Renewed Motion for Sanctions and Motion for

appointment of a Special Master.

I. BACKGROUND

Paul Carlock’s death on November 16, 2007 was one of three in the jail during the last

four months of 2007.1 Most of the deaths and near deaths were caused by very poor health care

1 At least one other resident of the jail almost died during the same 4 month period in 2007.

E-FILED Tuesday, 21 February, 2012 05:37:13 PM

Clerk, U.S. District Court, ILCD

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in the jail. Paul Carlock’s death was caused by a combination of reckless or deliberate physical

abuse and poor health care. The Carlock case has been pending since March 2008 and now is

scheduled for a jury trial in August, 2012. Audio recordings, video recordings and electronically

stored information (ESI) were not preserved by defendants. This relevant evidence would have

been preserved if it supported defendants in this case.2

On November 20, 2007, four days after Paul Carlock’s death, his family requested that

the Sheriff preserve evidence relating to Mr. Carlock’s incarceration on October 9, 2007 and

through his death in the jail November 16, 2007. Chief Deputy Sacco wrote back indicating the

evidence would be preserved, and stating that it was the policy and procedure of the Sheriff’s

Department to preserve all evidence. In January 2008, attorney Sharon Kelley wrote on behalf

of the Carlock family, again requesting preservation of evidence. On January 16, 2008, Chief

Deputy Sacco wrote a second letter on behalf of the Sheriff, agreeing to preserve all evidence

that the Carlock family had requested. [#273-4, pp. 23-28]. Despite Sacco's promises and the

department’s policy, significant Carlock evidence was not preserved. Evidence not preserved

includes: video tapes, audio tapes, emails, computer documents and other ESI. In addition to not

preserving the evidence, defendants have thwarted plaintiff's efforts to obtain evidence that may

still be available. And, most disturbing is defendants’ submission of false affidavit testimony and

arguments claiming that no relevant emails ever existed.

For example, the Sheriff defendants did not preserve all video tapes from the various

cameras in the jail during Paul Carlock's incarceration. Defendants have admitted that they did

not search for video and did not prevent relevant video from being overwritten. Video from jail

2 Defendants preserved some emails from the same time period for Burris v. Sheriff, et al, but did

not preserve emails for this case. Burris involved the death of Maurice Burris, who died within

one month after Paul Carlock’s death in the jail. Burris v. Sheriff, et al, No. 09-cv-3116 (C.D.

Ill. 2009).

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cameras would show Paul Carlock and his poor condition; but defendants claim video showing

Paul Carlock “is not available.” Defendants say this because defendants failed to preserve all of

the video that was available for 30 days after Paul Carlock’s death on November 16, 2007.

Other relevant audio and ESI evidence “is not available” because defendants failed to preserve it.

Without this evidence, it has been much easier for defendants to create their own self-serving

version of what happened to Paul Carlock on November 16, 2007.

Inexplicably, a litigation hold was not issued until June of 2008. Even then, the “hold”

was not actually enforced until December, 2008. This allowed most emails from before June,

2008 to be deleted. Defendants made no attempt to preserve relevant audio, video and ESI

despite their agreement to preserve it months earlier. Later, defendants would claim there was no

relevant email (ESI) based on false affidavits.3

The January 6, 2010 letter from defendants’ attorney Blodgett stated that defendants did

not have the manpower or resources even to retrieve the Carlock-related ESI not already

destroyed by the 180-day deletion policy. This simply was not true. Defendants had already

obtained a bid from RK Dixon on October 26, 2009, for retrieval of ten (10) mailboxes. The cost

was $3,360. (See Exhibit A) This shows the defendants knew how to preserve evidence with

minimal cost compared to the cost of trying to explain why it was not preserved. Instead, the

defendants chose to misrepresent to the plaintiff and this Court that no relevant evidence ever

3 Defendants Furlong, Guy and Powell have each submitted affidavits claiming they never sent

or received emails regarding this case. Defendants Beckner, Cain, Durr, Sacco, Strayer and

Williamson each submitted affidavits claiming that they did not send or receive any emails

regarding this case except for emails “from my attorney which are privileged.” [#345, Exs. 1-10,

12]. Plaintiff now has copies of some emails regarding this case which prove that most of these

affidavits are false. (See emails attached as Group Exhibit B involving Beckner, Strayer, Durr,

Powell, Cain and Furlong.) Defendants’ 180-day deletion policy eliminated most relevant ESI,

but the few emails now available prove that most, if not all, of the affiants have submitted false

declarations to the Court.

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existed. As a result of Mr. Blodgett’s claims that Sangamon County had no resources, plaintiff

incurred the expense of hiring an expert to collect ESI data according to defendants’ data

collection plan.4 But, defendants controlled the search and collection plan which limited

plaintiff’s expert (Andrew Garrett) to searches of whatever computers and servers they said

could contain Carlock ESI.

In 2010, plaintiff filed a Motion for Sanctions for spoliation of evidence. Magistrate

Bernthal’s Order dated January 27, 2011, said: “Defendants concede that if plaintiff presented

some threshold showing of spoliation, plaintiff would then be entitled to discovery to

determine the extent of spoliation . . . . The Court agrees with the plaintiff that the virtual

absence of ESI produced by the Defendants constitute a threshold showing, authorizing

inquiry in to whether Defendants failed to retain relevant documents.” [#328 at 6, emphasis

added]. To date, defendants continue to refuse to comply with the spirit of Judge Bernthal’s

Order by refusing forensic access to all of the computers of key custodians, such as those used by

defendants Williamson, Beckner, Strayer, et al. Until recently, defendants would not release

materials discovered by defendants’ own computer expert, Shawn Patrick. Even now, defendants

have not released useable ESI from Patrick. Before releasing anything discovered by Patrick,

defendants tried to bar his testimony even though he was defendants’ own expert witness [#369,

para. 4, 6].

After claiming in January, 2010, that they had no resources to hire a computer expert to

help them produce ESI, defendants hired Shawn Patrick later in 2010. (Patrick dep. at 12, 107).

Patrick has testified that he was directed by defendants to search certain servers, and that he

4 Plaintiff has learned that defendants failed to disclose all computers which probably contained

ESI relevant to this case. Even now, defendants have not provided these computers for

examination.

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relied on defendants to identify what he could examine. (Patrick dep. at 110-112). Patrick’s

search was not only limited in scope by the defendants, but he was also limited to a search for

ESI generated during October and November, 2007. Even with these limitations, Patrick was

allowed to search numerous computers not provided to plaintiff’s expert. (Garrett dep. at 20-21,

134-135 and Patrick dep. at 101-103) Unlike plaintiff’s expert, Patrick was also allowed access

to sections of hard drives (unallocated space) containing deleted ESI. (Patrick dep. at 104-108;

Garrett dep. at 60). Patrick testified that he found files relevant to the Carlock search terms that

he considered relevant and that he gave it all to defense counsel. (Patrick dep. at 34-37, 92, 104).

Prior to Patrick’s deposition, defendants had represented that “. . . . Mr. Patrick was not able to

harvest any non-privileged emails relating to this incident.” Patrick testified he didn’t know how

they got that impression. (Patrick dep. at 88). (See excerpts from Patrick dep. at Exhibit C and

Garrett dep. at Exhibit D).

After Patrick wrote his report indicating he found Carlock-related ESI, and while

defendants were claiming none existed, defendants filed a motion to exclude their own computer

expert’s report. [#369] Defendants also moved to bar a deposition of their expert, and they

requested that plaintiff’s expert also be barred. These motions were denied, and plaintiff deposed

Patrick. [Text Order 8/23/2011]. Patrick’s report and deposition reveal that he discovered emails

relevant to this case which defendants claimed did not exist. (See examples of relevant emails

attached as Group Exhibit B).

For almost four years, defendants have refused to produce critical evidence that they

agreed to preserve in January of 2008. Even after Magistrate Judge Bernthal’s January 27, 2010

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Order authorizing plaintiff’s further inquiry, defendants continued their false claim that relevant

ESI never existed. 5

II. ARGUMENT

A. Defendants are motivated to eliminate evidence which is adverse to them.

Since the April 18, 2011 hearing on sanctions, plaintiff has discovered more proof that

defendants knowingly and deliberately (in bad faith) failed to preserve Carlock-related (relevant)

evidence.

Defendants have always claimed plaintiff had no proof that there was “relevant” (email)

evidence which was not preserved. Defendants knew these representations were not true when

they were made, but they were motivated to misrepresent because the stakes are high. If

defendants willfully and recklessly failed to provide proper medical care and used excessive

force, this could cause civil liability. However, if defendants recklessly or deliberately harmed

Paul Carlock, they could be subject to criminal prosecution. Defendants have destroyed (failed

to preserve) audio, video and ESI evidence to protect themselves.

An eyewitness confirms that defendants mistreated Paul Carlock and used excessive

force; but defendants’ version of the events is markedly different than what has been reported by

the eyewitness. Defendants claim their force was not excessive, but justified because they claim

Paul Carlock was resisting. The eyewitness says Paul Carlock appeared very sick, and was not

5 This Court heard arguments on plaintiff’s refiled motion for sanctions on April 18, 2011. At

that hearing, defendants again argued there never were any “relevant” emails. This argument

was based on affidavits submitted by Sheriff Williamson and other defendants. Defendants

argued that they had no duty to preserve emails (ESI) that were not relevant. Ultimately, the

Court denied plaintiff’s initial motion for sanctions, but indicated the motion could be refiled if

“plaintiff has additional evidence to support her motion for sanctions.” [#361, p. 3] Plaintiff now

has proof that six (6) of the nine (9) affidavits are false. Because almost all emails from before

June 2008 have been deleted, and because the computers used by Williamson, Sacco, and Guy

have never been examined, plaintiff does not yet have specific emails involving these

defendants.

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resisting when taken to the floor already cuffed and shackled outside his cell. (See McLemore

Affidavit attached as Exhibit E). The missing evidence could corroborate the eyewitness

testimony.

B. The missing evidence is critical to plaintiff’s case.

The independent eye witness disputes the claim by defendants that Paul Carlock was

resisting at the time he was brought out of his cell. He says Paul Carlock was listless, looked

very ill, and was not resisting at all. Lab test results from the day before show that on the

morning he died, Paul Carlock was critically ill. However, defendants know that claiming

resistance is the only conceivable justification for tasering Paul Carlock and for placing Paul

Carlock face-down on the jail’s concrete floor while cuffed, and with a 285-pound jailor on his

back.

Video of the hallway area would unequivocally confirm whether Paul Carlock was

disoriented and not resisting as he was dragged, cuffed and shackled, from his cell to the hallway.

The lab tests show that Paul Carlock was critically ill, but the missing audio, video and ESI

evidence could eliminate all doubt.

After dropping Paul Carlock onto the hallway floor, CO Furlong then put his weight on

Paul Carlock’s back, and pushed down on his neck. Autopsies show that Paul Carlock had 11

broken ribs at his death. His ribs could have been broken when he was taken to the floor and sat

on by the 285-pound Furlong. Defendants of course claim that CPR performed by the EMT’s

broke his ribs. Once again, video would show exactly how Paul Carlock was handled by the

defendants. Obviously, the missing evidence is critical to plaintiff’s case. This prejudice to

plaintiff is a factor which should be considered in determining sanctions. (See Plunk v. Village of

Elwood, IL, 2009 WL 1444436 at *9-11 (N.D. Ill. May 20, 2009).

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C. The Sheriff defendants had multiple notices to preserve Carlock evidence; and

Sacco claimed the Department had a policy to preserve evidence.

To cover up their mistreatment of Paul Carlock, the Sheriff defendants have deliberately

destroyed and altered evidence which would be helpful to plaintiff. As law enforcement

personnel, the Sheriff defendants clearly know of their risks for discipline or prosecution if

deliberate or reckless mistreatment is proven. The missing audio, video and ESI could

incriminate defendants.

The failure to preserve evidence was deliberate because the Sheriff defendants clearly

knew they had a duty to preserve from the date of the incident. Chief Deputy Sacco promised to

preserve the evidence in his first letter written only four days after Paul Carlock’s death. Sacco’s

letter also states that the Sheriff defendants had a policy to the preserve evidence.

Defendants’ failure to follow their own policy allows an inference of intent to destroy

adverse evidence. According to the Seventh Circuit, violation of an agency’s own evidence

preservation policy by itself has been considered proof of “bad faith” (an intent to hide

unfavorable information). See Park v. City of Chicago, 297 F.3d 606, 615 (7th

Cir 2002) (holding

that an “intent” may be inferred if failure to preserve violates an agency’s own rules requiring

preservation, as here). Fault is defined not only by a party’s intent, but by the reasonableness of

the party’s conduct. See id. and Jones Bremen High School Dist. 228, 2010 WL 2106640 at *8

(N.D. Ill. 2010)(“bad faith may be inferred when a party disposes of documents in violation of its

own policies.”).

In the Seventh Circuit, “bad faith” allows the court to impose the most severe sanctions

for not preserving evidence. See Jones, 2010 WL 2106640, *6 (N.D. Ill. 2010). The sanctions

could be a default judgment, an adverse inference instruction, an award of money, or some other

penalty for the Sherriff defendants. Defendants should not be permitted to benefit from the

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spoliation. See Plunk, 2009 WL 1444436, *9. “The purpose of imposing sanctions is to prevent

abuses of the judicial process and to promote the efficient administration of justice.” Id., citing

Barnhill v. United States, 11 F.3d 1360, 1367 (7th

Cir. 1993).

D. The new and additional proof of defendants’ spoliation and discovery abuse.

Plaintiff here will not repeat all of the evidence of bad faith spoliation which was

already briefed for the April 18, 2011 hearing; however, the original briefs do form a backdrop

for plaintiff’s renewed motion for sanctions and appointment of a master. Plaintiff’s briefs

supporting the original (refiled) motion for sanctions are documents #337, #353, and #358.

Plaintiff urges the Court to consider the original briefs a part of this renewed request for

sanctions.

The new and additional evidence of spoliation and discovery abuse includes the

following:

1. Defendants have claimed their IT personnel were ignorant about litigation holds.

However, Paula Tolbert’s June, 2008 memos to staff shows that defendants’ I.T. personnel

obviously knew about litigation holds and the resulting obligations to preserve evidence.

(Exhibit F – Tolbert’s memos (leave is sought to file under seal)). Tolbert gave advice to others

regarding litigation holds, had many meetings with counsel to discuss litigation holds, and even

stated how important it was to retain metadata. [#294, p. 5 filed under seal].

2. Defendants were able to preserve specific video and email ESI which was

beneficial to them in the Burris death case; but they did not preserve any similar ESI for the

Carlock case even though in December, 2007, they clearly knew of their obligation to preserve

all Carlock evidence. Burris v Sheriff, et al., No. 09-cv-3116 (C.D. Ill. 2009). The preservation

of emails which helped the County in the Burris case proves defendants had the knowledge, staff

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and funds to preserve ESI for the period from September, 2007 to June, 2008 and thereafter. (See

Exhibit G – some of Durr’s printed emails).

Burris confirms that defendants’ loss and destruction of evidence was deliberate.

Maurice Burris died on December 12, 2007 after collapsing at the Sangamon County Jail on

December 5, 2007. This death, less than a month after Paul Carlock’s death, was primarily due

to improper medical care.6 In Burris, there were no allegations of excessive force by the

Sheriff’s employees. Because the Sheriff apparently believed liability for Burris’ death could be

shifted to the physician group, there was motivation to preserve evidence for the Burris case.

Terry Durr preserved ESI which would help shift liability for the Burris death to the physicians.

However, defendants did not preserve all ESI from the same period concerning Paul Carlock.

Here, the Sheriff was not motivated to preserve the Carlock emails, video and audio evidence

because here the legal responsibility (including liability for the jail doctors) lies solely with the

Sheriff and Sangamon County. How can the Sheriff defendants prove their failure to preserve

was innocent when they were able to preserve the Burris evidence that was generated during the

same period of time?

3. Despite defendants’ claims that no Carlock-related emails exist anywhere based

on the Durr and other affidavits attached to their response opposing sanctions [#345], some

emails have been found regarding Paul Carlock, along with emails regarding other inmates, and

emails regarding “incidents” involving other inmates! The individual computers used by all

affiants have never been searched for Carlock ESI, and plaintiff does not know what other proof

of false statements may still exist. At the April 18, 2011 hearing, defendants argued, based on

these affidavits, that they never sent inmate-related emails. [#345, Ex. 1-10; and 4/18/11 Tr. at

6 The Burris case was recently settled for an undisclosed total amount according to news reports

which suggest that the medical providers, not the county, paid most of the settlement.

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9-10]. Computers used by these affiants should be examined for Carlock-related ESI. Neither

plaintiff’s nor defendants’ computer expert was ever told that the individual computers could

contain Carlock-related ESI. Paula Tolbert helped designate the ESI sources for plaintiff’s

expert; but she did not designate individual custodians like the Sheriff and the others who later

made self-serving affidavits.

4. Shawn Patrick testified that he was hired by defendants in September or October

2010 “to search for material relative to the Carlock case and also to find if there was any

evidence that anything had been deleted or spoiled or erased relative to the case.” (Patrick dep. at

12-13). Patrick found over 23,000 files related to the Carlock case, which may or may not be

privileged in both accessible and inaccessible (deleted) areas of the hard drive. (Patrick dep. at

88-92). Patrick did not even look at every document. (Patrick dep. at 93-94). Patrick says he

delivered all of the materials he found to defendants’ counsel, and he assumed they would handle

them from there. (Patrick dep. at 93-94). Plaintiff has requested that defendants allow her expert,

Andrew Garrett, to conduct a forensic examination of the materials obtained by Shawn Patrick.

Defendants have refused this despite a previous agreement to do so and the existence of a

protective order covering forensic examinations by plaintiff’s expert. [#217, Order entered

3/1/2010] (Exhibit C – excerpts from Patrick Deposition).

5. Paula Tolbert’s spreadsheet notes say that certain jail employees (defendants

Beckner, Guy and the nurses) had email. These individuals are “key custodians” because they

were involved with Paul Carlock inside the jail on and before November 16, 2007. Despite

having emails, they were allowed to delete their emails or have them deleted by the 180-day jail

deletion policy, even after Chief Deputy Sacco agreed to preserve all evidence in December of

2007. (See Exhibit H – Tolbert spreadsheet).

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6. Since the April 18, 2011 hearing on sanctions, plaintiff has repeatedly requested

that defendants and their counsel provide evidence that a proper “litigation hold” was in place

and enforced before the June 3, 2008, litigation hold letter referenced by Tolbert’s spreadsheet.

As of now, the only evidence of a litigation hold is Tolbert’s spreadsheet note about the June 3,

2008 litigation hold letter. Defendants claim there was an earlier hold, but they have repeatedly

refused to produce evidence to support this claim. If a litigation hold actually was issued before

June, 2008, violation of the hold would be further evidence that defendants deliberately failed to

preserve evidence harmful to their case.

The failure to disable an automatic 180-day deletion policy for ESI would appear even

more deliberate if a hold letter was properly issued and violated after Chief Deputy Sacco agreed

to preserve all evidence in December of 2007. Defendants’ refusal to prove it issued and tried to

enforce a litigation hold before the 180-day deletion policy eliminated ESI leaves defendants in

an untenable position. Either a hold was issued shortly after Paul Carlock’s death in 2007 and

ignored, or a hold was not issued until June of 2008 and was not enforced until December 2008,

long after ESI generated before June 2008 was eliminated. See Oleksy v. General Electric Co.,

2011 WL 3471016, *2 (N.D.Ill. Aug. 8, 2011) (when a party first reasonably foresees litigation,

it is required to suspend policies on destruction of information and institute a litigation hold).

7. Attorney Blodgett’s January 6, and January 15, 2010 letters represent that only

one person in the jail preserved emails generated during the October and November, 2007

timeframe. According to Blodgett’s letters, only Jail Superintendent Terry Durr preserved and

printed any such emails, for a limited period from November 7, 2007 through February 6, 2008.

In his January 15, 2010 letter, Blodgett says copies of these few emails were enclosed.

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Mysteriously, included in emails Blodgett sent were emails outside the November 7, 2007 -

February 6, 2008 period. (Exhibit I – Blodgett letters).

It appears that attorney Blodgett’s letter referred only to the November 7, 2007 through

February 6, 2008 dates because these dates would capture what the Sheriff defendants wanted to

save for the Burris case. Apparently, emails to and from the HPL physician group were helpful

to defendants in Burris. HPL was responsible by contract for jail medical care when Maurice

Burris collapsed inside the jail. Prominent among the emails from the November 7, 2007 to

February 6, 2008 period were emails to and from HPL. It was advantageous for the County to

preserve these emails in order to help shift liability for Burris’ death to HPL. These HPL emails

in the Burris case actually prove defendants preserved ESI evidence, but only when it helped

their position. The emails saved by Durr also prove defendants could have preserved all ESI

from October 2007 through June 2008 and beyond. (See Plunk, 2009 WL 1444436, *5, 6, 8-10)

(defendants were sanctioned for spoliation under circumstances similar to Carlock v. Sheriff, et

al).

8. The emails produced by Blodgett with his January 15, 2010 letter contain 17

emails which relate to individual inmates and some reference incidents in the jail. (See some of

the Durr emails –Exhibit G). The emails regarding inmates and incidents in the jail contradict

defendants’ affidavits and argument that there were no Carlock-related emails. Durr’s affidavit

that there was a policy against emailing about specific inmates or “incidents” in the jail is proven

false by Durr’s own collection of printed emails. Defendants’ argument was also based on other

individual affidavits which claimed no emails were ever sent or received regarding Paul Carlock.

[#345-1, 10 and 12].

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Lastly, Durr’s printed emails produced by Blodgett on January 15, 2010 are not

consistent with the list of all of Durr’s emails for October 2007 through January 2008 (Email

Log Report), which was sent with Blodgett’s January 6, 2010 letter. (Durr Email Log Report –

Exhibit J). For example, a 12/13/07 email to Durr regarding Burris from the County

Administrator is not shown on the Email Log Report. (County Administrator email – Exhibit K).

This proves that certain emails were deleted from the Email Log Report before it was sent to

plaintiff. And this is further proof that defendants have not been honest in responding to

discovery requests for ESI. Durr’s printed emails prove: (1) that defendants had the ability to

preserve emails; (2) that defendants chose to keep deliberately selected emails which could be

helpful to them in other litigation; and (3) defendants have no credible excuse for failing to

preserve emails for the Carlock case. (See Blodgett letters – Exhibit I).

9. Defendants have never provided plaintiff access to several computers which

defendants knew sent or received Carlock-related ESI. (Patrick dep. at 110). These computers

were not even furnished for examination to defendants’ own computer expert, Shawn Patrick.

(Id. at 110-111). The unexamined computers include those used by Sheriff Williamson, Paula

Tolbert, Wayne Rovey, Dave Matrisch, Jim Gasparin, Tony Sacco, William Strayer, Terry Durr,

Ronald Beckner, and computers used by Nurses West, Brauer and Ramsey, and any other jail

personnel who dealt directly with Paul Carlock in October and November of 2007. Defendants’

computer expert testified that he relied on the defendants to tell him where he could look for

Carlock-related ESI. (Id. at 110). Patrick says he assumed he was getting all computers that had

relevant information. (Id. at 112). Not allowing their own expert to inspect all potential places

where relevant evidence may exist speaks volumes regarding defendants’ disregard for their duty

to preserve evidence.

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10. Defendants even filed a motion to bar the deposition of their own computer expert

witness, Shawn Patrick. (See defendants’ motion, #369 filed 7/13/11). To justify this strange

motion, defendants argued that continued focus on missing evidence would be expensive.

Defendants also argued that since plaintiff's initial motion for sanctions was denied, further

attempts by plaintiff to prove spoliation should be limited. [#369, para. 6] The Court denied

defendants' motion to bar Patrick’s deposition. [8/23/11 Text Order] During Patrick’s

deposition, plaintiff obtained additional proof of defendants’ spoliation and discovery abuse.

Patrick’s revelations explain defendants’ unusual motion to bar its own expert witness; and it is

graphic proof of the length to which defendants will go to cover-up their misdeeds. This

situation is similar to Plunk, 2009 WL 1444436, *8, where defendants withdrew their expert

witness who proved to be unfavorable to them. Here, as in Plunk, plaintiff’s allegations of

spoliation take place against a backdrop of other alleged misconduct. Id. at *8.

E. Defendants’ explanations for failing to preserve audio and video evidence are not

credible.

In their attempt to develop excuses for not preserving Carlock evidence, the Sheriff

defendants’ statements under oath in this case are contradictory, and not believable. The only

reasonable explanation for the contradictions is that the Sheriff and his Department are still

trying to cover-up their deliberate failure to preserve evidence. For example:

1. The camera button that was not pushed. County Employee Kent Milberg

reported to the FBI that the video camera which covered the hallway where Paul Carlock died

didn’t record on November 16, 2007; but jail Superintendent Durr later testified that the camera

did record at that time. Control Room Operator Mayberry’s memo of December 11, 2007, says

he thought the recording function on this same jail camera did not work on November 16, 2007;

but Mayberry didn’t arrive on duty until 8 AM, when Paul Carlock was already unresponsive.

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Milberg’s report says only that the record button on this hallway (Camera #36) was not pushed

when he arrived at 8 AM that day. The Sheriff defendants have not identified or presented any

evidence from the control room operator who actually was on duty before 8 AM, which would be

the critical video for this case. As always, defendants have an excuse for not having video of

Paul Carlock. However, if the camera did record as confirmed by Durr, and jail policy was to

record unusual incidents, why would the camera not be switched to record the unusual incident?

Since defendants have never produced the person who was on duty when Paul Carlock was on

the hallway floor before 8 AM, perhaps there was a recording which has now disappeared? Or,

perhaps the video camera was deliberately not switched on to record?

2. Missing audio – once reviewed, but now missing due to bad batteries! Lt.

Enos Brents’ most recent self-serving story about the audio tapes from the first Guy and Furlong

interviews being blank totally contradicts his earlier deposition testimony that he listened to all

audio tapes in order to complete his internal investigation report. His report included statements

from Guy and Furlong. Now, Brents claims the batteries in the recorder were bad; even though

he said nothing about this, or about blank tapes, when he was asked specifically about his audio

recordings during his earlier deposition. How could Brents listen to audio tapes that he now

claims were always blank because of bad batteries? He obviously has provided false testimony

at one time or the other.

3. Video that no one looked for. Jail Administrator Ron Beckner admits that he

never even looked for video of Paul Carlock in the Jail, other than for videos from the day of his

death. Beckner claims he immediately looked for and recovered only one video of the booking

area on November 16, 2007. But, the video itself proves that it was not preserved until

December 3, 2007. Beckner has also misrepresented that two hallway cameras, which recorded

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automatically, did not show anything relevant to this case. This is false because these cameras

obviously would show Paul Carlock in jail hallways both before and on November 16, 2007.

Cameras in the main hallway and in the hallway ceiling outside cell 13 would also show jail

personnel and inmates in the main hallway on November 16, 2007. The continuously recording

camera outside cell 13 would show Paul Carlock’s condition when he was wheeled on a stretcher

directly under that camera on November 16, 2007.

Beckner has not ever explained why the November 16, 2007 videos from these

other two cameras were not preserved. The Sheriff defendants did not preserve any video which

shows Paul Carlock in the jail, even though they were on notice to preserve all Carlock evidence

well within 30 days of Paul Carlock’s death. Defendants’ duty to preserve is further confirmed

by their agreement to preserve and by their policy to preserve the evidence. Defendants’ knew

the video system allowed them to preserve the video for about 30 days. Beckner, who was in

charge of the video system, “conveniently” failed to look for other video during the 30 days

when it could have been saved. Given the circumstances, defendants’ failure to preserve this

important, relevant evidence had to be intentional.

As a matter of law, because the Sheriff defendants violated their own policy to preserve

evidence, there is an inference that the missing evidence disappeared because the Sheriff

defendants knew it would harm them in court. See Park, 297 F.3d at 615. The Sheriff

defendants have no credible explanation as to why this occurred. The only reasonable

explanation is that the spoliation was deliberate to avoid potential civil and/or criminal liability

for Paul Carlock’s death. Remember that these defendants could and did preserve some evidence

from the same timeframe for their defense in the Burris case.

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F. A special master should be appointed to resolve the discovery and sanctions issues.

This case is riddled with discovery issues, from spoliation to discovery abuse. There is

evidence that defendants deliberately failed to preserve relevant evidence. Given the eyewitness

testimony which contradicts the statements and reports by the defendants, it is reasonable to

assume that the missing evidence could be unfavorable to defendants. Any of the missing audio,

video and ESI evidence which would corroborate the independent eyewitness, would obviously

be adverse to defendants.

Because the stakes are high for defendants in this case, it appears that they have

deliberately destroyed evidence (“bad faith spoliation”). To cover up their spoliation of

evidence, defendants have engaged in discovery abuse and have provided false and/or

misleading discovery responses and affidavits. Defendants' arguments to the court have been

based on these false and misleading responses and affidavits. As mentioned above, on April 18,

2011, defendants argued that the affidavits, including Durr’s claim about jail policy not to use

internal emails, [#345, Ex 4] supported their claim that “no emails were ever created.” [4/18/11

Tr. at 9-10] [See also #345, p. 19]. Defendants' written response to the plaintiff’s initial motion

for sanctions claimed, “the undisputed evidence in the record here is that defendants created no

emails relating to the Carlock incident.” (E-mail Transaction Log; attached at #345, Ex. 15,

Beckner, Cain, Crawford, Durr, Furlong, Guy, Milberg, Powell, Sacco, Strayer, Williamson Aff.,

attached at #345, Exs. 1-10, 12) [#345, p. 19].

Plaintiff now has proof from defendants' expert, Shawn Patrick, that many of these

affidavits are false because relevant emails were sent and received. (See Group Exhibit B).

Patrick discovered some of them. Apparently, the rest of the ESI is gone because defendants

allowed the 180-day deletion policy to eliminate it. Plaintiff, or a special master, should be

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allowed access for forensic examination of the computers used by Williamson, other defendants,

and other Sheriff’s personnel who communicated about Paul Carlock before or after his death.

The other sheriff’s personnel would include Paula Tolbert, Wayne Rovey, Dave Matrisch, Jim

Gasparin, Tony Sacco, William Strayer, Terry Durr, Ronald Beckner, Nurse West, Nurse Brauer

and Nurse Ramsey.

To date, defendants have argued there is no spoliation based on affidavits that we now

know are false, i.e., there really were Carlock-related (relevant) emails. [#345, p. 3]. To make

matters worse, defendants obviously did not issue or enforce a litigation hold for relevant

evidence in this case until it was too late.

Defendants’ continuing refusal to fully produce the useable ESI in its native format that

was discovered by defendants’ computer expert again illustrates the need for a special master.

Defense counsel’s own E-discovery blog warns about violating Rule 34. See Steve Puiszis,

Failing to Follow Rule 34’s Procedure Can Result In Having To Produce ESI A Second Time In

A Different Format, Practical Ediscovery, Dec. 4, 2009,

http://blog.hinshawlaw.com/practicalediscovery/2009/12/04/failing-to-follow-rule-34s (Exhibit L).

Defendants have stalled plaintiff in discovery for several years, and the stalling continues.

A special master could look at all of the materials discovered by Patrick, whether or not

defendants made privilege claims. As it stands, the recent production of the ESI discovered by

Patrick is not fully useable as required by Rule 34(b). See Craig and Landreth, Inc. v. Mazda

Motors, Inc., 2009 WL 2245108, *3 (S.D. Ind. July 28, 2009) (Rule 34 is clear – it is not

permissible to convert ESI to a different format that would make it more difficult or burdensome

to use); Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005, *2 (N.D. Ill.

Mar. 8, 2006)(plaintiff was entitled to ESI in format including metadata); and Martin v. Redline

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Recovery Service, 2009 WL 959635, *3 (N.D. Ill. Apr. 1, 2009). See emails between counsel

attached to plaintiff’s Renewed Motion for Sanctions.

The numerous false, misleading, and absurd claims designed by defendants to excuse the

missing evidence should be investigated by an independent special master. F.R.C.P. Rule

53(a)(1)(B) and (C) allows appointment of a special master without consent of the parties.

Plaintiff now requests appointment of a special master to investigate the discovery and spoliation

issues, and to make appropriate findings and recommendations to the Court. See Alford v. Rents,

Inc., 2010 WL 4222922, *2 (S.D. Ill. Oct. 20, 2010) and F.R.C.P. 53.

The attached article, E-Discovery: A Special Master's Perspective, describes the benefit

of using a special master to resolve e-discovery issues such as those in this case. Craig Ball,

E-Discovery: A Special Master’s Perspective, (2010), http://www.craigball.com/EDD_SM_PERSP.pdf.

(Exhibit M). Rule 53 (b)(2)(E) provides that the Court will fix the master's compensation in

accord with Rule 53(g). Per Rule 53(c)(2), the master may recommend or order sanctions; but

the Court would ultimately act to adopt, affirm, modify, reject or reverse the master's order,

report or recommendations. Alford, 2010 WL 4222922 at *2. Also attached is a copy of the

Seventh Circuit’s Discovery Pilot Case Law summaries as of September 12, 2011. Several of

these cases where sanctions were imposed are similar to this case; and many of the decisions

cited herein appear in the Plot Case Law summary. Seventh Circuit Electronic Discovery Pilot

Program, Discovery Pilot, Discovery Pilot Case Law ~ September 12, 2011,

http://www.discoverypilot.com/sites/default/files/discovery_pilot_case_law_general_cases.pdf (Exhibit N).

III. CONCLUSION

For the numerous reasons described above and in plaintiff’s initial submissions [#272 and

#336], the sanctions requested in plaintiff’s refiled motion [#336] should be imposed upon the

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Sheriff defendants, i.e. the issuance of an adverse inference instruction, and an award to plaintiff

of fees and costs incurred in proving spoliation and discovery abuse. Plaintiff requests leave to

present expert testimony and oral argument on the spoliation and discovery abuse issues.

In the alternative, before ruling on plaintiff’s renewed motion for sanctions, plaintiff

urges the appointment of a special master to investigate, and to make findings and

recommendations to the court as to the spoliation and discovery abuse which proliferate in this

case. If a special master is appointed, defendants should be required to pay the costs of the

special master because defendants’ spoliation and discovery abuse has caused the need for the

appointment.

February 21, 2012 Estate of PAUL CARLOCK, deceased

By Mary L. Andreatta-Carlock, Executor, Plaintiff

By /s/Jon D. Robinson

Jon D. Robinson ARDC No. 2356678

BOLEN ROBINSON & ELLIS, LLP

202 South Franklin, 2nd Floor

Decatur, Illinois 62523

Telephone: 217-429-4296

Fax: 217-329-0034

E-mail: jrobinson@brelaw.com

By /s/Sharon D. Elvidge-Kelley

Sharon D. Elvidge Kelley ARDC No. 06193792

ELVIDGE KELLEY LAW OFFICE

938 South 4th Street

Springfield, Illinois 62703

Telephone: 217-535-1000

Fax: 217-535-1055

E-mail: shalaw@ameritech.net

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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(B)(4)

The undersigned, counsel of record for the Plaintiff certifies that this brief conforms to

the rules contained in Local Rule 7.1(B)(4) for a memorandum that exceeds 15 pages, and states

that said memorandum contains 6,642 words according to word count in MS Word.

/s/ Jon D. Robinson

Jon D. Robinson ARDC No. 2356678

BOLEN ROBINSON & ELLIS, LLP

202 South Franklin, 2nd

Floor

Decatur, Illinois 62523

Telephone: 217-429-4296

Fax: 217-329-0034

E-mail: jrobinson@brelaw.com

CERTIFICATE OF SERVICE

I hereby certify that on February 21, 2012, I caused to be electronically filed the

foregoing pleading with the Clerk of Court using the CM/ECF system that will send notification

of such filing(s) to the registered attorneys of record, and I hereby certify that on February 21,

2012, I mailed by United States Postal Service, the document(s) to the following non-registered

participants: NONE

/s/ Jon D. Robinson

Jon D. Robinson ARDC No. 2356678

BOLEN ROBINSON & ELLIS, LLP

202 South Franklin, 2nd

Floor

Decatur, Illinois 62523

Telephone: 217-429-4296

Fax: 217-329-0034

E-mail: jrobinson@brelaw.com

Attorney for Estate of PAUL CARLOCK, deceased

By Mary L. Andreatta-Carlock, Executor, Plaintiff

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