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Lake Geneva officials won’t have to turn over computers

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Kayla Bunge
October 22, 2009
— A federal court judge has denied a request for the city to turn over its computers to prevent e-mails and other documents pertaining to the proposed Mirbeau-Hummel development from being destroyed.

Lisle Blackbourn, the attorney representing Mirbeau of Geneva Lake, which in July filed a federal lawsuit against the city, filed an emergency motion Sept. 29. The motion demanded the city and city council members immediately turn over their computers and other electronic storage devices for forensic examination as part of the discovery phase of the pending case.


He argued that paper copies of documents were not sufficient. He also argued some city officials might not have produced or might have deleted sensitive e-mails and other documents.


Amy Doyle, the attorney representing the city in the federal lawsuit, filed a response Oct. 6, saying city officials handed over “several boxes” of documents in response to the request.


She argued that allegations of e-mails and other documents being deleted was not enough to warrant the sequestering of computers.


Judge J.P. Stadtmueller wrote in his ruling Oct. 15 that Mirbeau has failed to demonstrate why extensive forensic analysis of city computers is necessary. He wrote that if the court were to grant the motion, it would result in “unnecessary disruptions” to a number of people.


Stadtmueller admonished both parties in his ruling. He noted that city officials have been “less than serious” in fulfilling their obligations with respect to the request for documents. He also noted that Mirbeau might be asking for too much.


“ … neither party appears to have advanced any alternative proposals regarding acceptable discovery methods or media formats in which to distribute the (electronically stored information) relevant to the litigation other than the two extreme positions advocated by each said,” he wrote. “ … it appears that the parties have had very few discussions with the goal of reaching a middle ground, rather than extremes.”


The judge also denied a request to quash the subpoenas of four city officials for depositions.


Doyle filed a motion Sept. 30, asking the court to quash the subpoenas of city council members Mary Jo Fesenmaier, Penny Roehrer and Tom Spellman, as well as former Alderman Larry Magee because she needed more time to investigate a possible conflict of interest.


She said the charges that Mayor Bill Chesen filed against Fesenmaier, Roehrer and Spellman, as well as Alderwoman Arleen Krohn, originally did not appear to be related to the Mirbeau lawsuit, but statements Chesen made during his deposition suggest otherwise.


She argued deposing the council members before the conflict is resolved would subject them to “undue burden.”


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


He argued Doyle has had several weeks to evaluate her potential conflict.


Stadtmueller wrote in his ruling that the issue now is moot, because Blackbourn agreed to reschedule the depositions and because the dates of the previously scheduled depositions have passed.


He wrote that the back-and-forth motions and responses simply are products of “poor communication between the two sides and an issue that is more appropriate for resolution by the parties instead of by the court.”


“The court cannot be expected to be cast in the role of baby-sitter at the slightest discovery problem,” he concluded.



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