Attorney Matthew Engel Motion in support of sanctions
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. AFFIDAVIT OF
MATTHEW ENGEL
City of St. Paul, et al., IN SUPPORT OF MOTION
FOR SANCTIONS
Defendants.
Sandra Harrilal, et al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
Matthew A. Engel, being duly sworn upon oath, states and deposes as follows:
Case 0:04-cv-02632-JNE-SRN Document 115 Filed 08/06/2007 Page 1 of 11
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1. I am an attorney licensed to practice law in the State of Minnesota and
admitted to practice in District Court. I am the attorney of record for the
Plaintiffs in Thomas J. Gallagher, et. al., v. Magner, et. al. This affidavit is
submitted on behalf of all of the Plaintiffs in the above captioned matters in
support of Plaintiffs’ Motion for Sanctions.
2. On March 12, 2007, pursuant to Fed. R. Civ. P. 37 (a)(2)(A), attorney John R.
Shoemaker, counsel for the Steinhauser, et al. and Harrilal, et al. Plaintiffs, and
I met and conferred in good faith with Louise Toscano Seeba, attorney for
Defendants in the above entitled matters, in an attempt to resolve the discovery
dispute regarding Defendants’ failure to respond to Plaintiffs’ requests for
production of documents and interrogatories within the time permitted by the
Rules.
3. Attached hereto as Exhibit “A” are true and correct copies of the Plaintifffs’
Interrogatories to Defendants and Plaintiffs’ Request for Production of
Documents. Requests were made for emails. See Document Request No. 90
of Exhibit “A” at page 18. Requests were made for TISH reports. See
Document Request No. 91 of Exhibit “A” at page 18. Requests were made for
Problem Property documents. See Interrogatory No.35 of Exhibit “A” at
page 8. See Document Request No. 13 and 34 of Exhibit “A” at pages 5 and 9.
Requests were made for PHA documents. See Interrogatory Nos.9-22 of
Exhibit “A” at pages 3-6. See Document Request Nos. 20-24 of Exhibit “A” at
pages 6-8.
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4. Thereafter, I submitted a letter to Defendants’ counsel confirming the
agreements of counsel for the continued discovery efforts. Attached hereto as
Exhibit “B” is a true and correct copy of the March 13, 2007, correspondence I
sent to Ms. Seeba.
5. During the next 12 weeks, between March 16, 2007 and June 11, 2007, I
scheduled and appeared at various City of St. Paul offices to review and scan
documents. There were approximately 20 document reviews on or about the
following dates: TISH reports on the following dates: March 16, 21, 22, 26,
and 27; April 3, 5, 13, and 17; Fire Prevention documents on April 19;
Employee Mileage Reports and Police Call Reports on April 23; NHPI
documents on April 27; LIEP documents on May 7; Moermond research files
on May 8; Legislative Hearing documents on May 23 and 24; Problem
property lists, Sweep reports, and other NHPI documents on May 31; Fire
Prevention documents on June 4; LIEP files on June 11 and 18, 2007.
6. During the document review session on April 23, 2007, at the offices of the
City Attorney, Defendants’ counsel Ms. Seeba stated to me that her IT people
would like to work on getting the emails, but that they only have emails
available back to December of 2005. During several of these meet and confer
meetings with Defendant’s counsel, I was informed that all emails prior to
December of 2005 had been destroyed and were no longer available.
7. I sent a letter to Defendant’s counsel Ms. Seeba dated May 1, 2007, confirming
the destruction of all emails prior to December, 2005. Ms. Seeba responded
Case 0:04-cv-02632-JNE-SRN Document 115 Filed 08/06/2007 Page 3 of 11
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with a letter dated May 3, 2007, confirming that no emails prior to December
of 2005 were available, but certain emails were available after December,
2005. Attached hereto as Exhibit “C” and “Exhibit D” are true and correct
copies of the May 1, 2007, and May 3, 2007, correspondence.
8. During the document review sessions at the St. Paul City Attorney’s office, on
no less than five occasions I sat down to meet and confer with Defendant’s
counsel, Louise Seeba, and discussed the status, progress, and technicalities of
the production of emails by the defendants.
9. Defendants’ counsel stated that she needed a list of names of the individuals of
whom Plaintiffs would like emails produced. I requested a list of all of the
employees for each of the departments listed in the discovery request.
Defendants’ counsel agreed to produce the lists. On June 4, 2007, counsel
agreed that defendants would restore available emails of certain city
employees. Plaintiffs’ and Defendants’ counsel exchanged letters on June 6,
2007. Defendants’ letter dated June 6, 2007, contained a list with the city
employees to restore available emails. Plaintiffs’ counsel responded to
defendants’ counsel with additional City employee names. Attached hereto as
Exhibit “E,” “Exhibit F,” and “Exhibit G” are true and correct copies of the
June 6, 2007, and June 7, 2007, correspondence and employee lists of city
employees whose emails were to be restored back to December of 2005.
10. During the document review session of Truth In Sale of Housing (TISH)
Reports on March 16, 2007, at the offices of Neighborhood Housing and
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Property Improvement, 1600 White Bear Avenue, City of St. Paul employee
Connie Sandberg stated to me, John Shoemaker and Frank Steinhauser that
copies of TISH reports are only maintained for three (3) years, and that all
TISH reports prior to 2004 had been destroyed.
11. TISH reports are relevant to the Plaintiffs claims as they show the condition of
the interior of properties within the City of St. Paul. Destruction of TISH
reports is prejudicial to Plaintiffs’ in that these reports will show the conditions
of similar properties, including those owned by PHA or those owned by city
officials. Plaintiffs in the Gallagher, et al. case, as well as the Steinhauser, et
al. and Harrilal, et al. cases, have claims that the Plaintiffs' properties and those
of other targeted rental property owners are not afforded PHA's competitive
advantage of deferral of capital improvements but instead suffer immediate and
long term adverse consequences from Defendants' discriminatory and illegal
code enforcement actions and racketeering activity against the privately owned
rental properties and rental businesses who are providing housing services to
Section 8 and low income “protected class” members. TISH reports would
show that PHA's rental housing stock has similar health, safety, fire and
housing code issues as the rental properties that are owned by Plaintiffs and
other private landlords renting to “protected class” members including those
property owners providing critical housing under the Section 8 program.
However, PHA’s rental housing stock is subjected to City code enforcement
but to a minimal degree compared to City code enforcement applied to
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Plaintiffs and similarly situated private rental property owners. PHA's rental
housing stock is not subjected by Defendants to condemnations, orders to
vacate, demands for code compliance inspections, fines or rental registration
provisions, including rental revocation actions. Additionally, PHA’s rental
housing stock is rarely, if ever, targeted with any other code enforcement
actions by Defendants. Conversely, Plaintiffs and other private landlords
renting to “protected class” members are subjected to these adverse code
enforcement actions by Defendants. TISH reports of similarly situated
properties is relevant and likely to show that Plaintiffs’ properties were
illegally targeted – in violation of and in support of Plaintiffs’ claims,
including claims under RICO, Fair Housing, Civil Rights, Antitrust, Abuse of
Process, and Tortious Interference with Contract and Business Expectancy.
12. Attached hereto as Exhibit “H” are 2004 TISH reports of PHA properties
which were obtained from the remaining TISH reports that were not destroyed.
Exhibit “H” contains four (4) TISH reports from 2004 for PHA properties.
13. Attached hereto as Exhibit “I” are 2007 TISH reports of PHA properties which
were obtained from the remaining TISH reports that were not destroyed.
Exhibit “I” contains seventeen (17) TISH reports from 2007 for PHA
properties.
14. Attached hereto as Exhibit “J” are TISH reports of city official and employee
properties which were obtained from the remaining TISH reports that were not
destroyed.
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15. Attached hereto as Exhibit “K” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 910 6th Street, St. Paul. These thirteen (13)
TISH reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from 6th Street, which runs east/west; 5th Street,
which is one (1) block south; and Margaret, which is one (1) block north.
16. Attached hereto as Exhibit “L” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 719 Sherburne Street, St. Paul. These
seventeen (17) TISH reports were obtained from the remaining TISH reports
that were not destroyed. They were taken from Sherburne Street, which runs
east/west; Charles Street, which is one (1) block north; and Edmund Street,
which is two (2) blocks north.
17. Attached hereto as Exhibit “M” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 704 East Lawson, St. Paul. These twenty-five
(25) TISH reports were obtained from the remaining TISH reports that were
not destroyed. They were taken from Lawson Street, which runs east/west;
Cook Street, which is one (1) block north; Jenks Street, which is one (1) block
south; and Case Street, which is two (2) blocks south of Lawson.
18. Attached hereto as Exhibit “N” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
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property which was targeted at 469 Whitall, St. Paul. These twelve (12) TISH
reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from Whitall Street, which runs east/west; Burr
Street, which is a north/south street that dead ends at Whitall; Case Street,
which is two (2) blocks north; and Jenks Street, which is three (3) blocks north
of Whitall.
19. Attached hereto as Exhibit “O” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 297 Burgess, St. Paul. These fourteen (14)
TISH reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from Burgess Street, which runs east/west;
Stinson Street, which is one (1) block north; and Front Street, which is two (2)
blocks north of Burgess.
20. Attached hereto as Exhibit “P” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 118 Litchfield, St. Paul. These sixteen (16)
TISH reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from Litchfield Street, which runs east/west; Front
Street, which is one (1) block north; Park Street, which is one (1) block east;
Manitoba Street, which is two (2) blocks south; Winnipeg Street, which is
three (3) blocks south; and Sycamore Street, which is four (4) blocks south of
Litchfield.
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21. Attached hereto as Exhibit “Q” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
properties which were targeted at 953 Wilson, 970 Euclid and 1024 Euclid, St.
Paul. These twenty-three (23) TISH reports were obtained from the remaining
TISH reports that were not destroyed. They were taken from Euclid Street,
which runs east/west; Conway Street, which is one (1) block north; Wilson
Street, which is two (2) blocks south; and Wakefield Street, which is three (3)
blocks south of Euclid.
22. Attached hereto as Exhibit “R” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
properties which were targeted at 606 Edmund and 390 Sherburne, St. Paul.
These twenty-five (25) TISH reports were obtained from the remaining TISH
reports that were not destroyed. They were taken from Sherburne Street,
which runs east/west; Charles Street, which is one (1) block north; and
Edmund Street, which is two (2) blocks north of Sherburne.
23. Emails, electronic communications and electronically stored documents are
relevant to the Plaintiffs claims as they may show selective targeting of
Plaintiffs or others by code enforcement officers in the City of St. Paul, and, as
such, the destruction of emails is prejudicial to Plaintiffs. Those emails may
have shown Defendants knew and intended that their selectively aggressive
Case 0:04-cv-02632-JNE-SRN Document 115 Filed 08/06/2007 Page 9 of 11
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code enforcement operations against Plaintiffs, other property owners, and
their tenants, would have a discriminatory impact upon members of the
"protected class" living within the City and upon the private property owners
providing housing to said “protected class.” Defendant Dawkins prepared a
memo to code enforcement inspectors regarding the discriminatory impact of
code enforcement. This evidence was produced anonymously in one of the
five (5) anonymous packets received by John Shoemaker. See Exhibit “39” of
Affidavit of John Shoemaker. It is reasonably likely that this type of evidence
would have been contained in the emails from 2002-2005, the time period in
which Plaintiffs claim illegal code enforcement. However, all emails during
Defendant Dawkins’ employment have been destroyed, and this is prejudicial
to the Plaintiffs.
24. Defendants were put on notice of the Plaintiffs’ claims with detailed facts,
circumstances and issues surrounding such claims. These detailed claims
provided Defendants with sufficient notice to place a litigation hold and not to
destroy relevant evidence. Attached hereto as Exhibit “S” is a true and correct
copy of the July 5, 2005, Notice of Claim Letter. The Complaint, First
Amended Complaint and Second Amended Complaint can be found at Case
No. 05-1348, ECF Doc. Nos. 1-1, 17, and 59, and were filed on July 6, 2005,
December 21, 2005, and May 4, 2007, respectively.
25. Attached hereto as Exhibit “T” are true and correct copies of Defendants’
Answers to Plaintiffs’ Interrogatories and Defendants’ Responses to Plaintiffs’
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Demand for Production of Documents. These documents will show the
Defendants’ responses to the requests discussed in paragraph 3 of this affidavit.
26. Attached hereto as Exhibit “U” are true and correct copies of all emails found
in the documents produced by Defendants with respect to all of the Plaintiffs in
the Gallagher, et al. case. The search for emails included the NHPI, LIEP and
Fire Prevention files for thirty-four (34) properties, equaling 2,230 pages. The
review for emails produced only seven (7) emails, four (4) of which related to
a singe correspondence between Thomas Gallagher and Mike Cassidy with
respect to a property located at 643 Watson.
FURTHER YOUR AFFIANT SAYTH NOT.
Dated: 8/6/07 s/ Matthew A. Engel__
Matthew A. Engel
Subscribed and sworn to before me
this 6th day of August, 2007.
s/ Erik L. Vakula
Notary Public
Under Seal
DISTRICT OF MINNESOTA
Frank J. Steinhauser, III, et al., Civil No. 04-2632
JNE/SRN
Plaintiffs,
v. AFFIDAVIT OF
MATTHEW ENGEL
City of St. Paul, et al., IN SUPPORT OF MOTION
FOR SANCTIONS
Defendants.
Sandra Harrilal, et al., Civil No. 05-461
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
Thomas J. Gallagher, et al., Civil No. 05-1348
JNE/SRN
Plaintiffs,
v.
Steve Magner, et al.,
Defendants.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
Matthew A. Engel, being duly sworn upon oath, states and deposes as follows:
Case 0:04-cv-02632-JNE-SRN Document 115 Filed 08/06/2007 Page 1 of 11
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1. I am an attorney licensed to practice law in the State of Minnesota and
admitted to practice in District Court. I am the attorney of record for the
Plaintiffs in Thomas J. Gallagher, et. al., v. Magner, et. al. This affidavit is
submitted on behalf of all of the Plaintiffs in the above captioned matters in
support of Plaintiffs’ Motion for Sanctions.
2. On March 12, 2007, pursuant to Fed. R. Civ. P. 37 (a)(2)(A), attorney John R.
Shoemaker, counsel for the Steinhauser, et al. and Harrilal, et al. Plaintiffs, and
I met and conferred in good faith with Louise Toscano Seeba, attorney for
Defendants in the above entitled matters, in an attempt to resolve the discovery
dispute regarding Defendants’ failure to respond to Plaintiffs’ requests for
production of documents and interrogatories within the time permitted by the
Rules.
3. Attached hereto as Exhibit “A” are true and correct copies of the Plaintifffs’
Interrogatories to Defendants and Plaintiffs’ Request for Production of
Documents. Requests were made for emails. See Document Request No. 90
of Exhibit “A” at page 18. Requests were made for TISH reports. See
Document Request No. 91 of Exhibit “A” at page 18. Requests were made for
Problem Property documents. See Interrogatory No.35 of Exhibit “A” at
page 8. See Document Request No. 13 and 34 of Exhibit “A” at pages 5 and 9.
Requests were made for PHA documents. See Interrogatory Nos.9-22 of
Exhibit “A” at pages 3-6. See Document Request Nos. 20-24 of Exhibit “A” at
pages 6-8.
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4. Thereafter, I submitted a letter to Defendants’ counsel confirming the
agreements of counsel for the continued discovery efforts. Attached hereto as
Exhibit “B” is a true and correct copy of the March 13, 2007, correspondence I
sent to Ms. Seeba.
5. During the next 12 weeks, between March 16, 2007 and June 11, 2007, I
scheduled and appeared at various City of St. Paul offices to review and scan
documents. There were approximately 20 document reviews on or about the
following dates: TISH reports on the following dates: March 16, 21, 22, 26,
and 27; April 3, 5, 13, and 17; Fire Prevention documents on April 19;
Employee Mileage Reports and Police Call Reports on April 23; NHPI
documents on April 27; LIEP documents on May 7; Moermond research files
on May 8; Legislative Hearing documents on May 23 and 24; Problem
property lists, Sweep reports, and other NHPI documents on May 31; Fire
Prevention documents on June 4; LIEP files on June 11 and 18, 2007.
6. During the document review session on April 23, 2007, at the offices of the
City Attorney, Defendants’ counsel Ms. Seeba stated to me that her IT people
would like to work on getting the emails, but that they only have emails
available back to December of 2005. During several of these meet and confer
meetings with Defendant’s counsel, I was informed that all emails prior to
December of 2005 had been destroyed and were no longer available.
7. I sent a letter to Defendant’s counsel Ms. Seeba dated May 1, 2007, confirming
the destruction of all emails prior to December, 2005. Ms. Seeba responded
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with a letter dated May 3, 2007, confirming that no emails prior to December
of 2005 were available, but certain emails were available after December,
2005. Attached hereto as Exhibit “C” and “Exhibit D” are true and correct
copies of the May 1, 2007, and May 3, 2007, correspondence.
8. During the document review sessions at the St. Paul City Attorney’s office, on
no less than five occasions I sat down to meet and confer with Defendant’s
counsel, Louise Seeba, and discussed the status, progress, and technicalities of
the production of emails by the defendants.
9. Defendants’ counsel stated that she needed a list of names of the individuals of
whom Plaintiffs would like emails produced. I requested a list of all of the
employees for each of the departments listed in the discovery request.
Defendants’ counsel agreed to produce the lists. On June 4, 2007, counsel
agreed that defendants would restore available emails of certain city
employees. Plaintiffs’ and Defendants’ counsel exchanged letters on June 6,
2007. Defendants’ letter dated June 6, 2007, contained a list with the city
employees to restore available emails. Plaintiffs’ counsel responded to
defendants’ counsel with additional City employee names. Attached hereto as
Exhibit “E,” “Exhibit F,” and “Exhibit G” are true and correct copies of the
June 6, 2007, and June 7, 2007, correspondence and employee lists of city
employees whose emails were to be restored back to December of 2005.
10. During the document review session of Truth In Sale of Housing (TISH)
Reports on March 16, 2007, at the offices of Neighborhood Housing and
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5
Property Improvement, 1600 White Bear Avenue, City of St. Paul employee
Connie Sandberg stated to me, John Shoemaker and Frank Steinhauser that
copies of TISH reports are only maintained for three (3) years, and that all
TISH reports prior to 2004 had been destroyed.
11. TISH reports are relevant to the Plaintiffs claims as they show the condition of
the interior of properties within the City of St. Paul. Destruction of TISH
reports is prejudicial to Plaintiffs’ in that these reports will show the conditions
of similar properties, including those owned by PHA or those owned by city
officials. Plaintiffs in the Gallagher, et al. case, as well as the Steinhauser, et
al. and Harrilal, et al. cases, have claims that the Plaintiffs' properties and those
of other targeted rental property owners are not afforded PHA's competitive
advantage of deferral of capital improvements but instead suffer immediate and
long term adverse consequences from Defendants' discriminatory and illegal
code enforcement actions and racketeering activity against the privately owned
rental properties and rental businesses who are providing housing services to
Section 8 and low income “protected class” members. TISH reports would
show that PHA's rental housing stock has similar health, safety, fire and
housing code issues as the rental properties that are owned by Plaintiffs and
other private landlords renting to “protected class” members including those
property owners providing critical housing under the Section 8 program.
However, PHA’s rental housing stock is subjected to City code enforcement
but to a minimal degree compared to City code enforcement applied to
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6
Plaintiffs and similarly situated private rental property owners. PHA's rental
housing stock is not subjected by Defendants to condemnations, orders to
vacate, demands for code compliance inspections, fines or rental registration
provisions, including rental revocation actions. Additionally, PHA’s rental
housing stock is rarely, if ever, targeted with any other code enforcement
actions by Defendants. Conversely, Plaintiffs and other private landlords
renting to “protected class” members are subjected to these adverse code
enforcement actions by Defendants. TISH reports of similarly situated
properties is relevant and likely to show that Plaintiffs’ properties were
illegally targeted – in violation of and in support of Plaintiffs’ claims,
including claims under RICO, Fair Housing, Civil Rights, Antitrust, Abuse of
Process, and Tortious Interference with Contract and Business Expectancy.
12. Attached hereto as Exhibit “H” are 2004 TISH reports of PHA properties
which were obtained from the remaining TISH reports that were not destroyed.
Exhibit “H” contains four (4) TISH reports from 2004 for PHA properties.
13. Attached hereto as Exhibit “I” are 2007 TISH reports of PHA properties which
were obtained from the remaining TISH reports that were not destroyed.
Exhibit “I” contains seventeen (17) TISH reports from 2007 for PHA
properties.
14. Attached hereto as Exhibit “J” are TISH reports of city official and employee
properties which were obtained from the remaining TISH reports that were not
destroyed.
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15. Attached hereto as Exhibit “K” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 910 6th Street, St. Paul. These thirteen (13)
TISH reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from 6th Street, which runs east/west; 5th Street,
which is one (1) block south; and Margaret, which is one (1) block north.
16. Attached hereto as Exhibit “L” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 719 Sherburne Street, St. Paul. These
seventeen (17) TISH reports were obtained from the remaining TISH reports
that were not destroyed. They were taken from Sherburne Street, which runs
east/west; Charles Street, which is one (1) block north; and Edmund Street,
which is two (2) blocks north.
17. Attached hereto as Exhibit “M” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 704 East Lawson, St. Paul. These twenty-five
(25) TISH reports were obtained from the remaining TISH reports that were
not destroyed. They were taken from Lawson Street, which runs east/west;
Cook Street, which is one (1) block north; Jenks Street, which is one (1) block
south; and Case Street, which is two (2) blocks south of Lawson.
18. Attached hereto as Exhibit “N” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
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8
property which was targeted at 469 Whitall, St. Paul. These twelve (12) TISH
reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from Whitall Street, which runs east/west; Burr
Street, which is a north/south street that dead ends at Whitall; Case Street,
which is two (2) blocks north; and Jenks Street, which is three (3) blocks north
of Whitall.
19. Attached hereto as Exhibit “O” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 297 Burgess, St. Paul. These fourteen (14)
TISH reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from Burgess Street, which runs east/west;
Stinson Street, which is one (1) block north; and Front Street, which is two (2)
blocks north of Burgess.
20. Attached hereto as Exhibit “P” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
property which was targeted at 118 Litchfield, St. Paul. These sixteen (16)
TISH reports were obtained from the remaining TISH reports that were not
destroyed. They were taken from Litchfield Street, which runs east/west; Front
Street, which is one (1) block north; Park Street, which is one (1) block east;
Manitoba Street, which is two (2) blocks south; Winnipeg Street, which is
three (3) blocks south; and Sycamore Street, which is four (4) blocks south of
Litchfield.
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21. Attached hereto as Exhibit “Q” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
properties which were targeted at 953 Wilson, 970 Euclid and 1024 Euclid, St.
Paul. These twenty-three (23) TISH reports were obtained from the remaining
TISH reports that were not destroyed. They were taken from Euclid Street,
which runs east/west; Conway Street, which is one (1) block north; Wilson
Street, which is two (2) blocks south; and Wakefield Street, which is three (3)
blocks south of Euclid.
22. Attached hereto as Exhibit “R” are TISH reports of properties located in the
City of St. Paul which are located in the neighborhood surrounding a Plaintiff’s
properties which were targeted at 606 Edmund and 390 Sherburne, St. Paul.
These twenty-five (25) TISH reports were obtained from the remaining TISH
reports that were not destroyed. They were taken from Sherburne Street,
which runs east/west; Charles Street, which is one (1) block north; and
Edmund Street, which is two (2) blocks north of Sherburne.
23. Emails, electronic communications and electronically stored documents are
relevant to the Plaintiffs claims as they may show selective targeting of
Plaintiffs or others by code enforcement officers in the City of St. Paul, and, as
such, the destruction of emails is prejudicial to Plaintiffs. Those emails may
have shown Defendants knew and intended that their selectively aggressive
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10
code enforcement operations against Plaintiffs, other property owners, and
their tenants, would have a discriminatory impact upon members of the
"protected class" living within the City and upon the private property owners
providing housing to said “protected class.” Defendant Dawkins prepared a
memo to code enforcement inspectors regarding the discriminatory impact of
code enforcement. This evidence was produced anonymously in one of the
five (5) anonymous packets received by John Shoemaker. See Exhibit “39” of
Affidavit of John Shoemaker. It is reasonably likely that this type of evidence
would have been contained in the emails from 2002-2005, the time period in
which Plaintiffs claim illegal code enforcement. However, all emails during
Defendant Dawkins’ employment have been destroyed, and this is prejudicial
to the Plaintiffs.
24. Defendants were put on notice of the Plaintiffs’ claims with detailed facts,
circumstances and issues surrounding such claims. These detailed claims
provided Defendants with sufficient notice to place a litigation hold and not to
destroy relevant evidence. Attached hereto as Exhibit “S” is a true and correct
copy of the July 5, 2005, Notice of Claim Letter. The Complaint, First
Amended Complaint and Second Amended Complaint can be found at Case
No. 05-1348, ECF Doc. Nos. 1-1, 17, and 59, and were filed on July 6, 2005,
December 21, 2005, and May 4, 2007, respectively.
25. Attached hereto as Exhibit “T” are true and correct copies of Defendants’
Answers to Plaintiffs’ Interrogatories and Defendants’ Responses to Plaintiffs’
Case 0:04-cv-02632-JNE-SRN Document 115 Filed 08/06/2007 Page 10 of 11
11
Demand for Production of Documents. These documents will show the
Defendants’ responses to the requests discussed in paragraph 3 of this affidavit.
26. Attached hereto as Exhibit “U” are true and correct copies of all emails found
in the documents produced by Defendants with respect to all of the Plaintiffs in
the Gallagher, et al. case. The search for emails included the NHPI, LIEP and
Fire Prevention files for thirty-four (34) properties, equaling 2,230 pages. The
review for emails produced only seven (7) emails, four (4) of which related to
a singe correspondence between Thomas Gallagher and Mike Cassidy with
respect to a property located at 643 Watson.
FURTHER YOUR AFFIANT SAYTH NOT.
Dated: 8/6/07 s/ Matthew A. Engel__
Matthew A. Engel
Subscribed and sworn to before me
this 6th day of August, 2007.
s/ Erik L. Vakula
Notary Public
Under Seal
posted by Bob at 9:27 AM
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