IN THE CIRCUIT COURT OF JEFFERSON COUNTY

STATE OF MISSOURI
KENNETH J. MOSS.
Plaintiff,
ROBERT I(. SWEENEY, MAYOR RON COUNTS,
CHIEF ROI]I]RT SHOCKEY, SUSAN BOONE
AND KEVIN L. GARRISON,
Defendants.
Case No. l3JE-CC00134
Division No. 2
PLAINTIFF'S MOTION TO COMPEL
INTERROGATORY RESPONSES AND PRODUCTION OF DOCUMENTS
COMES NOW Plaintiff, by and through his undersigned counsel, and pursuant to
Missor-rri Sr-rpreme Court Rule 66.0land Local Rule 33.5, for and in support of his motion to
compel production of documents, states as follows:
1 . On or about Augu st 26.2013, in response to original discovery propounded by the
Plaintiff. Defendants prodr-rced the follou,ing discovery documents to Plaintiff s counsel:
a. Re.sponse'of De./bndants Sweeney, Shockey, and Counts to Plaintiff
Kenneth Mo.ss' First Requestfor Production of Documents,'
b. Defendant Streeney's Response to Plaintiff's First Interuogatories.
c. Defendant Shockey's Re,spon,se to Plaintiff's First Interrogatories.
d. Defendant Ron Counts' Response to Plaintilf's First Interrogatories.
2. The production set forth above was not sufficiently responsive to Plaintiff s
interrogatories and document requests.
3. In an attemptto resolve this discovery dispute, a "golden rule" letterwas sentto
defense counselon October 29,2013. (Golden Rule letter is attached hereto as Exhibit l and
incorporatecl lierein by reference as if fully set forth).
4. On or about October 37,2013,Plaintiff
propounded a second set of Requests for
Productiou to Defendants Sweeney, Counts, and Shockey.
5. On or about December 4,2013, Defendants produced the following discovery
documcnts to Plaintiff s counsel:
a. Response of Defendants Sweeney, Shockey, and Counts to Plaintiff
Kenneth Moss' Second Request
for
Production of Documents,'
b. Defendant Sweeney's Supplentental Response to Plaintiff's First
Interrogatories.
c. Defendant Shockey's Supplemental Response to Plaintiff's First
Interrogatories.
d. Defendant Ron Counts' Supplentental Response to Plaintiff's First
Interrogatories.
6. The supplemental discovery production remains non-responsive to the
interrogatories and requests for production propounded upon the Defendants in the following
manner:
I Del'cndants' Responses to Plaintiff s Request for Production of Documents
a. RFP Nos. 3,4,6,7, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22,23,24,25,26,27,
and 28: Defendants ob.lected to numerous requests for production on the grounds
oIattomey-client comrnunications. Communications in furtherance of a conspiracy
among the Defendants to commit intentional torts do not constitute privileged
attorney-client communications. Simply because an attorney is involved in a
communication does not make the communication privileged; the communication
must be made for the purpose of obtaining legal advice. Therefore, communications
clesigned or intended to injure a political rival are not be privileged.
Similarly, documents/emails prepared by Mr. Sweeney in furtherance of the
conspiracy to injure a political rival would not be work product. More importantly, to
the extent that any attorney-client privilege may have existed, it was waived when
Mr. Sweeney provided a sworn statement in this case and made public comments
about Mr. Moss to the media.
Plaintiff is entitled to any and all documents withheld pursuant to a claim of
attorney-client privilege as the result of communications with Mr. Sweeney.
b. RFP Nos. 3,4, 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19,20,21,22, 23,24,25,26,27,
untl 28: Defendants object to a number of requests for production on the basis of
tl,e insured-insurer privileged. No privilege log has been produced however.
C. RFP Nos. 3,4,6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19,20, 21,22,23,24,25,26,27,
tutrl 28: Defendants object to a number of requests for production on the basis of
the mediation privileged. No privilege log has been produced however.
IIFP Nos. 4, 7, ll, 12,, 13, 14, 15, 16, 17, 18, 19, 20, 2L, 22, and 23: Defendants
objected to each of these requests to produce on the grounds that the information is a
closed record under the Missouri Sunshine Law. However, Missouri courts have
n-rade it clear that closed records under the Sunshine Law are discoverable as a
disclosure "otherwise reqr.rired by law" pursuant to Missouri Supreme Court Rule
56.01(bX1) . State ex rel. Mo. State Bd. of Pharm. v. Admin. Hearing Comm'n,220
S.W.3d 822,826 (Mo. App. W.D. 2007). Therefore, any documents withheld as
closed records under the Sunshine Law should be produced.
e. llFP Nos. 11,12,13, and 14: Subject to lengthy objections Defendants suggest they
have no responsive documents to these requests. Plaintiff requests the objections be
rerroved and a definitive "no responsive documents" response be provided if that is
incleed the case.
f . l{FP Nos. 4, 6,7
,
ll, 12,, 13, 14,26, and 27 : Defendants generally object to this
cliscovery as irrelevant to the proceeding and in some cases, not reasonably calculated
to lead to tl,e discovery of admissible evidence. All of the discovery requested is at
least reasonably calculated to lead to the discovery of admissible evidence and should
be produced. Plaintiff requests that the Courl require Defendants to defend these
ob.jections on a point by point basis, or remove them
g. RFP Nos. 4 and 24: Defendants objected to these requests as overbroad (Nos. 4 &
24) andnot reasonaUty timiteO as to time (No. 2a). ln an effort to resolve this dispute,
Plaintiff lirnited the timeframe to January 201 0 to the present and RFP No. 24 to
.lanuary 2012 to the present. Despite this narrowing of the timeframe no supplemental
response has been received.
lr. IIFP Nos. 26 and 27: Delendants object to the production of documents on the basis
that they "related to a separate pending civil action". This is not a legally acceptable
objection.
IIFP Nos. 2, 15,17, and 18: These responses all indicate that additional documents
would be produced
-
none have been.
!11
d]
a)
C)
:J
p.
;
"11
i.
a":"
a-.
lii
::il
(ri
(n
i)
a-
nl
:::
!-.
:n
!:.
l'.,)
!r0
a'.,
ar
.0,
{)
:jl
l.-)
.j)
ia:
"i
RFP No. 22: The Defendants response does not include Resolution No. 09-68 or the
closed session minutes relating andlor pertaining to the removal of Robert Sweeney
as City Attorney and the reasons for this removal.
k. RFP No. 30: Defendants have not produced a declarations page for the relevant
insurance policy.
L RFP No. 31: In response to an objection that the information sought was overly
broad. Plaintiff the "other litigation" request to any complaint(s), lawsuit(s), threat(s)
of lawsuit(s), settlement agreement(s) or other communications relating andlor
pertaining to allegations of interfering with an elected/appointed official or efforts to
remove an elected/appointed official from office. No response has been provided.
I I)efendant Sweenev's Response to Interrogatories
a. Interrogatory Nos. 7A,8A, 13A,19A, 27,28A, and 30A: Each of these
interrogatories requests the dates of certain communications. No dates were
provided. Defendant has an obligation to answer these interrogatories in good
faith, which includes an attempt at identifying the applicable timeframes.
b. Interrogatory Nos. 8I] and 19B: Missouri Supreme Coutt Rule 61.01(a) makes
it clear that for purposes of Rule 6l,"an evasive or incomplete answer is to be
treated as a failure to answer."
lrJ
4)
f)
{,
:]
1'
*
'{:,
I
it
al
*
r!,
ari
f:)
L
:
:.
fi
q.
l")
;".
ff
':;
( ."r
((;l
r:
ia
>,"
c. Interrogatory Nos. 98, 108, 128, 13B, 27,288, & 308: Defendant has asserted
the attomey-client privilege to each of these interrogatories. For the reasons set
forth above, the privilege does not apply or it has been waived, and these
interrogatories should be answered without objection.
d. Interrogatory 22: As there is no evidence yet, "assumes facts not in evidence" is
not a valid objection. Moreover, there can be no dispute that Mr. Sweeney was
fircd as the Arnold City Attorney
-
he should be required to explain why he
believes he was fired.
Interrogatory 23: Defendant originally objected to this interrogatory as being an
incomplete sentence and unintelligible. In a Golden Rule letter it was amended,
but still not answered in the supplemental interrogatory response.
f. Interrogatory No. 26 The Defendant's answer is non-responsive as this
interrogatory does not claim that Mr. Sweeney removed any candidates for city
office but requests the reasoning he provided to the City for its decision to remove
car"rdidates from the ballot. Furthennore, there is no rule that prohibits
information from one lawsuit frorn being discovered in another lawsuit.
Moreover, Mr. Sweeney's legal opinion to the City for the disqualification of Mr.
Missey as a candidate for City office was published in the newspaper. Therefore,
any claim of privilege regarding Mr. Sweeney's mental impressions has been
i:i
.1
r,l
*
:')
i5
a'
:
-i:
ri]
tf.
a-
{Il
{t
il)
()
(.-.
il")
!:
ln
i.J
7)
:
...1
l.:.1
{ra
(:l
{s
[:
t{:
waived by the public disclosure of this infonnation, which should also be
provided to Plaintiff.
g. Interrogatory No. 298: Like the attorney-client
privilege, the insurer/insured
privilege is limited. It is related to communications regarding a pending claim.
Discussions relating to the exclusion of Mr. Moss from coverage are not
privileged but instead demonstrate a pattern on the part of the Defendants to take
actions designed to force Mr. Moss to resign from office, and therefore, are highly
relevant to this proceeding.
h. Interrogatory No. 30C: Mr. Sweeney has failed to identify those who
participated in any communications regarding Rebecca MosS' request for a
Personnel Review Board meeting.
IT
a. Interrogatory No. 2: While in supplemental responses this interrogatory is
answered, it is answered subject to objections. Plaintiff requests these objections
be removed. As set forth above, that information may be closed under the
SLrnshine Law does not provide a basis for objecting to its production in litigation.
b. Interrogatory No. 3: An incornplete answer is provided subject to objection.
Plaintiff requests that the interrogatory be answered completely and the objection
bc withdrawn.
c. Interrogatories 4 and 5: Non-responsive. There is no rule or case law that
allows a party to litigation to defer his answers to an attorney representing him
another action.
d. Interrogatory No. 6: This interrogatory clearly asks each defendant to identify
tlrose persons the defendant had communications with about the Boone/Moss
investigation, and therefore, is not vague or ambiguous for failing to identify
those persons with whom the defendant supposedly communicated. "Too many
to remember" as a response to a request for dates and substance of
communications is an evasive answer that does not comply with Missouri's
discovery rules.
e. Interrogatory Nos. 6A,9A,10A, 13A,22A: Defendant has to make a
reasonable, good faith efforl to provide the information requested. If he cannot
provide a date, he should provide a tirneframe.
f. Interrogatory Nos. 68, 108, 11B, 128, 13B, 188, 21,228: For all of the
reasons previously discussed, the attorney-client privilege does not apply in this
case as it relates to communications with Defendant Sweeney.
g. Interrogatory No. 9r l3r l4,,18B: Once again, evasive answers were provided,
r.r,hich are treated as no answer. Defendant should fully and completely answer
each of these interrogatories.
h. Interrogatory 6C, 13C, 18C: Defendant has failed to identify witnesses who
were present and viewed communications.
Interrogatory No. 19D: Supplemental coruespondence was provided to
Defendant acknowledging that the phrasing was a little awkward because of the
extra "and who," and clarified that the interrogatory clearly asks Mr. Shockey to
state rvhen he reported information or evidence that Mr. Moss allegedly
harassed/created a hostile work environment for Ms. Boone to the Council and to
whom on the Council this information/evidence was reported. This interrogatory
was never answered.
j.
Interrogatory No. 21: Once again, in an effort to resolve this discovery dispute,
Interrogatory No. i t *u, lirnited to January 2010 to the present
-
no answer was
received to this restricted timeframe. Once again, claiming that there were too
many communications to remember, particularly about the Boone matter, is an
evasive answer that does not comply with Missouri's discovery rules.
Interrogatory No. 23: Like the attorney-client privilege, the insurer/insured
privilege is limited. It is related to communications regarding a pending claim.
Discr-rssions relating to the exclusion of Mr. Moss from coverage are not
privileged but instead demonstrate a pattern on the part of the Defendants to take
actions designed to force Mr. Moss to resign from office, and therefore, are highly
relevant to this proceeding.
I Defendant Counts' Response to Interrogatories
a. Interrogatory No. 2: As set forth above, that information may be closed under the
Sunshine Law does not provide a basis for objecting to its production in litigation.
b. Interrogatory Nos. 4 and 19: The issue of Shockey's filing of a "Charge of
Discrimination" after Defendant Boone was paid a substantial sum of money when
she filed a Charge of Discrimination is highly relevant to the allegations of the
Petition and the Defendants conspiracy against Plaintiff.
c. Interrogatory Nos.5A,7A, l2A,17A,18A, and 21: Defendant Counts has to make
a reasonable, good faith effort to provide the information requested. If he cannot
provide a date, t-,e st outa provide a timeframe.
d. Interrogatory Nos. 58,98, 10B, 11, 128,178,21,22B,238: For all of the reasons
previously discussed, the attorney-client privilege does not apply in this case as it
relates to communications with Defendant Sweeney.
e. Interrogatory Nos. 22 and 23: Defendant answers these interrogatories subject to
inappropriate objections
-
the objections should be removed.
f. Interrogatory 2l: The response to this interrogatory is evasive and does evidence a
good faith effort to answer this interrogatory. Plaintiff,, through a Golden Rule letter,
l0
limited the timeframe from January 2010 to the present, and still did not receive an
adequate response.
WHEREFORE, Plaintiff respectfully requests the Court compel the Defendants' to
as the Court may deem
just and proper in the premises.
Respectfully submitted,
PLEBAN & PETRUSKA LAW, LLC
/s/ Lynette Petruska
C. John Pleban,
}y4024l90
Lynette M. Petruska, MO4l2l2
Brandy B. Barth, MO56668
2010 South Big Bend Blvd.
St. Louis, MO 63117
cnleban@oleban law.com
loetruska@oleban law.com
bbarth@olebanlaw.com
Telephone: (314) 645-6666
Facsimile: (314) 645-7376
Attorneys for Pl aintiff
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was sent via the Missouri
State Court electronic filing system this 28th day of January,2014,to allparties of record.
ttt
6
o
o
6'
o_
rl
6-
g
I
(*
o
(!
U}
o
::,
0)
:f,
o)

provide substantive and complete answers to these discovery requests, and for such further relief
H
N)
(}
I
O
!?
l\l
(o
By:
l1
/s/ Lvnette Petruska