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Tuesday, 21 February, 2012 05:37:13 PM Clerk, U.S. District Court, ILCD IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD, ILLINOIS

E-FILED

Estate of AMON PAUL CARLOCK, JR., deceased By Mary L. Andreatta-Carlock, Executor, Plaintiff, vs. NEIL WILLIAMSON, AS SHERIFF OF SANGAMON COUNTY; ANTHONY SACCO, CHIEF DEPUTY; TERRY DURR, JAIL SUPERINTENDENT; WILLIAM 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, R.N.; NURSE NIECEY WEST, LPN; NURSE LUCY RAMSEY, LPN; JOSEPH MAURER, M.D., CHAUNCEY C. MAHER III, M.D., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 3:08-cv-03075

Judge Sue Myerscough

With Jury Demand

ORAL ARGUMENT AND EVIDENCE REQUESTED

PLAINTIFFS 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 Carlocks 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

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

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in the jail. Paul Carlocks 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 Carlocks death, his family requested that the Sheriff preserve evidence relating to Mr. Carlocks 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 Sheriffs 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 departments 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 Carlocks 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 Carlocks 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

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. Blodgetts 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

plaintiffs 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 Bernthals 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 Bernthals 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

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). Patricks 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 plaintiffs expert. (Garrett dep. at 20-21, 134-135 and Patrick dep. at 101-103) Unlike plaintiffs 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 Patricks deposition, defendants had represented that . . . . Mr. Patrick was not able to harvest any non-privileged emails relating to this incident. Patrick testified he didnt 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 experts report. [#369] Defendants also moved to bar a deposition of their expert, and they requested that plaintiffs expert also be barred. These motions were denied, and plaintiff deposed Patrick. [Text Order 8/23/2011]. Patricks 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 Bernthals January 27, 2010

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Order authorizing plaintiffs 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 This Court heard arguments on plaintiffs 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 plaintiffs 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.
5

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resisting when taken to the floor already cuffed and shackled outside his cell. (See McLemore Affidavit attached as Exhibit E). testimony. B. The missing evidence is critical to plaintiffs 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 The missing evidence could corroborate the eyewitness

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 jails 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 Carlocks 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 EMTs broke his ribs. Once again, video would show exactly how Paul Carlock was handled by the defendants. Obviously, the missing evidence is critical to plaintiffs 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. 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 Carlocks death. Saccos 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 agencys 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 agencys own rules requiring preservation, as here). Fault is defined not only by a partys intent, but by the reasonableness of the partys 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 The missing audio, video and ESI could

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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 plaintiffs renewed motion for sanctions and appointment of a master. Plaintiffs 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 Tolberts 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 Tolberts 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 Durrs 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 Carlocks death, was primarily due to improper medical care.6 In Burris, there were no allegations of excessive force by the Sheriffs 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 plaintiffs nor defendants computer expert was ever told that the individual computers could contain Carlock-related ESI. Paula Tolbert helped designate the ESI sources for plaintiffs 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 plaintiffs expert. [#217, Order entered 3/1/2010] (Exhibit C excerpts from Patrick Deposition). 5. Paula Tolberts 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 Tolberts spreadsheet. As of now, the only evidence of a litigation hold is Tolberts 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 Carlocks 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 Blodgetts 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 Blodgetts 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 Blodgetts 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. Durrs affidavit that there was a policy against emailing about specific inmates or incidents in the jail is proven false by Durrs 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, Durrs printed emails produced by Blodgett on January 15, 2010 are not consistent with the list of all of Durrs emails for October 2007 through January 2008 (Email Log Report), which was sent with Blodgetts 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. Durrs 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 Patricks deposition. [8/23/11 Text Order] During Patricks

deposition, plaintiff obtained additional proof of defendants spoliation and discovery abuse. Patricks 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, plaintiffs 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 didnt record on November 16, 2007; but jail Superintendent Durr later testified that the camera did record at that time. Control Room Operator Mayberrys 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 didnt arrive on duty until 8 AM, when Paul Carlock was already unresponsive.

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Milbergs 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 Carlocks 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 Carlocks 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 Carlocks 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 Durrs 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 plaintiffs 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 Sheriffs personnel who communicated about Paul Carlock before or after his death. The other sheriffs 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 counsels own E-discovery blog warns about violating Rule 34. See Steve Puiszis, Failing to Follow Rule 34s 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 plaintiffs 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 Masters 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 Circuits 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 plaintiffs initial submissions [#272 and #336], the sanctions requested in plaintiffs 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 plaintiffs 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