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Mirbeau-Hummel attorney: 'The city is hiding something'

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Kayla Bunge
October 13, 2009
— Amy Doyle, the attorney representing the city in the federal lawsuit filed by Mirbeau of Geneva Lake, declined to comment Monday on whether the city would comply with a request to turn over its computers to prevent e-mails and other documents from being deleted.

Lisle Blackbourn, the attorney representing Mirbeau, filed an emergency motion Sept. 29, demanding the city and city council members immediately turn over their computers and other electronic storage devices to prevent any e-mails and other documents pertaining to the proposed Mirbeau-Hummel development from being destroyed.


Doyle on Oct. 6 filed a response to the motion, saying Mirbeau has "failed to produce any credible evidence that relevant information has not been produced or has been destroyed" by city officials.


"Mirbeau's innuendos and unsubstantiated allegations are not enough to warrant the extreme order or sequestering all electronic storage devices ," she wrote. "The absurdity of (the) position is even more evident by the fact that Mirbeau has not even identified which (city official) or what information it believes has been destroyed."


Doyle also said city officials have not refused to produce requested information. "Several boxes of documents, including e-mail correspondence" were handed over to Mirbeau in response to its request, she wrote.


Mirbeau over the summer requested that city council members provide copies of any e-mails and other documents pertaining to the proposed Mirbeau-Hummel development as part of the discovery phase of the pending case.


But a recent conversation with Mayor Bill Chesen made Blackbourn uncertain whether city officials were adequately fulfilling the request.


In a deposition Sept. 16, Chesen said some city officials might already have deleted e-mails from their computers.


"Hard drives are being deleted as we speak," he was quoted as saying after the lawsuit was filed, according to the deposition.


Chesen also said he believes city council members Mary Jo Fesenmaier, Penny Roehrer and Tom Spellman are not providing the information requested.


Mirbeau maintains there are e-mails that city officials have not provided and are in danger of being lost.


In his motion, Blackbourn wrote that e-mails provided by Roehrer indicate she engaged in "extensive discussion" about the Mirbeau-Hummel project from her personal computer at least a month before she voted against the project. The e-mails show at least three city council members simultaneously received e-mails from the Friends of Geneva Lake, a group opposed to the proposed development, yet those council members' e-mails have not been produced, he wrote.


" it is reasonable to conclude that the city is hiding something," Blackbourn wrote.


The pending charges that Chesen filed against Fesenmaier, Roehrer and Spellman, as well as Alderwoman Arleen Krohn, which include violating the Wisconsin Open Meetings Law, also made Blackbourn uneasy.


In his motion, he wrote that Mirbeau has a right to determine if the four council members or any other city officials privately communicated via e-mail about the Mirbeau-Hummel project.


'Delay tactics'


Mirbeau recently subpoenaed Fesenmaier, Roehrer and Spellman, as well as former Alderman Larry Magee, for depositions as part of the discovery phase of the pending case, but the city has asked for more time to investigate a possible conflict of interest.


Doyle filed a motion Sept. 30, asking the court to quash the subpoenas because deposing the council members before the conflict is resolved would subject them to "undue burden."


She wrote that the charges that Chesen filed against Fesenmaier, Krohn, Roehrer and Spellman originally did not appear to be related to the Mirbeau lawsuit, but statements Chesen made during his deposition suggest otherwise.


She wrote that despite requesting time to investigate the potential conflict of interest, Mirbeau persisted in "demanding" the depositions take place.


Doyle declined to comment Monday on whether she would continue to represent the city in the matter.


Blackbourn on Oct. 6 filed a response to the motion, saying Mirbeau simply wants to proceed with the discovery process.


He wrote that Doyle never asked him to stop trying to schedule the depositions or mentioned that his attempts to schedule them were creating an undue burden for the city council members.


He wrote that Doyle has had more than three weeks to evaluate her potential conflict of interest, yet she has failed to determine whether she can continue to represent the city.


"This inaction has nothing to do with any conflict," he wrote. "(They) are simply engaging in delay tactics."


Blackbourn also wrote that the motion has hindered Mirbeau's efforts to determine if any e-mails or other documents pertaining to the Mirbeau-Hummel project have been destroyed.



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