Judge to Reconsider Previously Issued Sanctions

The dispute over discovery in Doe v. Mount Vernon Board of Education et al. continues.

On Thursday, a hearing was held in the courtroom of federal judge Gregory Frost to reassess the basis of his previously issued sanctions against defendant John Freshwater and attorney R. Kelly Hamilton.

Douglas Mansfield, attorney for the plaintiffs, had argued that Freshwater and Hamilton failed to turn over all items requested for discovery.

Freshwater and Hamilton have maintained that they did turn over all items subject to discovery that they have.

(See documents provided at end of article for the details of this ongoing dispute.)

Collaboration among attorneys

Although Hamilton is representing Freshwater in related legal matters—another federal case, the administrative hearing and formerly for the dismissed counter claims—he is not Freshwater’s attorney in Doe v. Mount Vernon Board of Education et al.

Freshwater testified in the hearing that he believes the dispute over discovery is about the other side trying to keep Hamilton busy so that he cannot focus on the other case and on writing the “massive brief” that is coming due in the administrative hearing.

Freshwater said that the attorneys are “collaborating” against him and Hamilton.

The attorneys on the opposing side of the legal matters regarding Freshwater have done nothing to hide that they are, to some degree, working together. During the administrative hearing the school board’s attorney, David Millstone, routinely allowed the attorney for the “Doe” family to sit at the table with him.

During the federal hearing, Sarah Moore, an attorney for Mount Vernon City Schools’ superintendent Steve Short, sat at the table with the plaintiffs. Ironically, Short was a defendant in the case until a partial settlement was reached in August of 2009.

The partial settlement removed all defendants from the lawsuit except for Freshwater. The only significant monetary consideration that the plaintiffs received in the settlement was $115,500 for the reimbursement of their legal fees. The money was paid by the school board’s insurance.

Short was brought as a witness for the plaintiffs to testify about a one-sheet handwritten inventory he said he made of items that he returned to Freshwater in August of 2008.

(Short’s testimony on this matter covered the same ground as when he testified about it in the administrative hearing. See the section “Inventory of Freshwater’s personal items” in the article “BIBLE ON THE DESK: Freshwater Hearing Comes Full Circle with Last Witness.” )

Moore stated—as an explanation for why the inventory sheet was not turned over in response to public record requests from Freshwater—that it is protected by the work product doctrine and not a public record.

No explanation was provided of how the plaintiffs ended up with a copy of the inventory sheet by May 14, 2010 when they used it as an exhibit in one of their motions regarding the discovery disputes.

Also brought as a witness for the plaintiffs was Millstone, attorney for the school board. The school board, as shown by the name of the case, was the primary defendant until the partial settlement was reached in August of 2009.

Millstone testified that he had a conversation with Hamilton in which Hamilton indicated that he had recorded an interview with retired science teacher Jeff George. Millstone said that he did not request a copy of the recording. (George was not brought as a witness in the administrative hearing.)

In Mansfield’s closing arguments, he said that any recordings should be turned over to him even if the person recorded was not listed in pre-trial as a witness.

Billing records

One of the documents that Mansfield had requested was the billing records for the production of Freshwater’s May 2008 affidavits.

Freshwater testified that he had created the affidavits in preparation for what was to be the second interview with the H.R. On Call investigators.

Hamilton said in his opening statement that he does not have the billing records from May of 2008 regarding the affidavits. He explained that the records were destroyed when a water pipe burst above his computer. Hamilton provided the court with supporting documentation.

Mansfield said that it doesn’t ring true that the records were destroyed in a “flood.”

In a memorandum, Mansfield had provided his summary of Hamilton’s billing records that he was able to obtain from an attorney for the school board. He said that the records included the May 2008 time period but did not mention the production of any affidavits.

Freshwater testified in the hearing that he had four separate fee agreements with Hamilton. In a written statement, Freshwater said:

“The two bills I got from [Hamilton for May 2008] were for two different processes. One bill was for the investigative interview and the other bill was for the legal works other than the interview preparation. I have never hidden the fact that I had separate legal billings.”

Judge Frost

At the close of testimony and arguments, Frost said that he wants this case and the related case to go away more than anyone else does.

Related documents:

2008 response by Freshwater to plaintiffs’ requests for production of documents. 828.8 KB PDF.

January 20, 2010 memorandum by Hamilton responding to plaintiffs’ motion to compel. (Doc#78) 43.93 KB PDF.

May 7, 2010 motion by Mansfield for sanctions. (Doc# 96) 56.57 KB PDF.

May 10, 2010 response by Hamilton to Mansfield’s motion for sanctions. (Doc# 97) 30.76 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—main. (Doc#101) 44.59 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—attachment, inventory. (Doc#101-8) 81.51 KB PDF.

June 1, 2010 opinion and order by Frost on motion for sanctions. (Doc# 106) 51.7 KB PDF.

June 15, 2010 motion by Hamilton for reconsideration of Frost’s opinion and order. (Doc#107.) 23.54 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—main. (Doc# 114) 59.68 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—attachment, inventory and photos. (Doc# 114-3) 7.49 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—main. (Doc# 116) 42.94 KB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment one, Freshwater’s affidavit concerning billing records. (Doc#116-1) 1.65 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment two. (Doc# 116-2) 27.9 KB PDF.

The National Center for Science Education maintains an archive of many of the court documents for the case Doe v. Mount Vernon Board of Education et al. and for the related case Freshwater v. Mount Vernon Board of Education et al.