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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICmGAN SOUTHERN DIVISION ERNEST FlAGG, as Next Friend of J.B., a minor; TARIS JACKSON, as Next Friend of AI., a minor; and DR. BRIAN GREENE, as Next Friend of lB., a minor, Plaintiffs, -vsCITY OF DETROIT, a municipal corporation; and KWAMEM. KILPATRICK, jointly and severally, Case No.: 05-CV-74253 Hon. Gerald E. Rosen Mag. Judge R. Steven Whalen

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NORMAN YATOOMA & AssoCIATES, P.C. By: Norman A Yatooma(p54746) By: Kirkland W. Garey (P342l2) By: Gary L. Hermanson (P54754) By: Ashley A Coneff (P72628) Attorneys for Plaintiffs 219 Elm Street Birmingham, M148009 (248) 642-3600 nya@normanyatooma.com Moss & COLELLA P.C. By: Vince Colella (P49747) Co-Counsel for Plaintiffs Greene, Jackson, lB. and AJ. 29100 Northwestern Hwy., Suite 310 Southfield, M148034 (248) 945-0100 vcolella@mosscolellacom

Defendants.

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JAMES C. THOMAS, P.C.

By: James C. Thomas (P2380l) By: Michael C. Naughton (P70856) Attorneys for Defendant Kilpatrick 535 Griswold Street, Suite 2500 Detroit, M148226 (313) 963-2420 michnaughl@gmail.com

CITY OFDETROlT LAW DEPARTMENT

By: John A Schapka (P3673l) Attorney for Defendant City of Detroit 660 Woodward Ave, Suite 1650 Detroit, M148226 (313) 237-3018 schaj@detroitmi.gov

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PLAINTIFFS' SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR SANCTIONS AGAINST DEFENDANT CITY OF DETROIT BASED UPON FAILURE TO COMPLY WITH ORDER ENTERED ON OCTOBER 26. 2010 AS WELL AS INCOMPLETE AND INACCURATE DISCOVERY RESPONSES (DOCKET #527) Plaintiffs submit this Supplemental Brief in Support of its pending Motion for Sanctions Against Defendant City of Detroit (Docket #527) that was originally filed on November 23, 2010

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to bring to the Court's attention events which have transpired since that time, and which show that the Defendant, City of Detroit, has still not produced all materials required by this Court's Order entered on October 26, 2010. In addition, the record reflects that various materials have now been belatedly produced long after they were originally requested, on July 30, 2010 and, then, only after Plaintiffs' repeated attempts to secure same from the City, and only after the City'S unfounded assertions that no further responsive materials exist. This was followed by: a) the filing of Plaintiffs' Motion to Compel on September 9, 2010 (Docket #443); b) several meet and confer sessions between the Plaintiffs' counsel and the City's attorney during which the mantra ''the City has produced all we have" was repeated again and again; c) an appearance before this Honorable Court for hearing on October 26,2010; d) the entry of an Order compelling discovery on October 26, 2010; e) the City'S subsequent incomplete production of documents required by that Order which, in tum, necessitated t) the Plaintiffs' filing of yet another motion, on November 23, 2010, that again clearly documented the City's noncompliance (Docket #527), after which g) the City finally produced some of the documents required by the October 26, 2010 Order, which still has not been complied with fully as of the present date. A substantial sanction is warranted here, not only for the City's continued failure to fully comply, but also for the needless time and expense to which Plaintiffs, and this Court, have been put based upon the City's inaccurate, incomplete, and misleading discovery responses to date which, time and again, have resulted in additional documents being miraculously "found" after the City'S initial assertions suggesting that it had no further responsive materials were repeatedly shown to be false. After numerous requests, the City has now belatedly produced certain documents that were sought by Plaintiffs on July 30, 2010 and were required to be produced in accordance with the

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Court's Order of October 26, 2010, including various Activity Logs for DPD's 7th Precinct but none of tbe Preliminary Complaint Reports reflecting police "runs" for August, September, and October 2002, which tbe City's counsel represented to tbe Court at tbe hearing on October 26, 2010 had already been produced when, in fact, tbey had not been. Moreover, it was only after tbe filing of tbe Plaintiffs' second motion on tbe subject of tbe City'S continued failure to respond fully to tbe July 30, 2010 discovery requests (Docket #527), tbat various Activity Logs not previously produced for DPD's 7th Precinct Harbormaster Boat Unit, as well as various Daily Detail sheets for tbe Harbormaster Unit, were finally produced after the City'S initial evasive response tbat such materials ''may have been purged" was rejected by tbis Court as insufficient. The items tbat remain outstanding include tbe September 4, 2010 Activity Log for DPD Sgt. Shawn Gargalino. The complete production of all of Sgt. Gargalino's run sheets are of particular importance, as noted in Plaintiffs' pending motion on tbis subject (Docket #527), because Sgt. Gargalino has been specifically identified -- by 911 dispatcher Sandy Cardenas of tbe DPD -- as being tbe supervising officer who was dispatched to tbe Manoogian Mansion in response to several 911 calls regarding a disturbance at tbe Mansion in tbe fall of 2002. (See Docket #527, Exhibit 4, Affidavit of Sandy Cardenas). The evidence does show tbat Sgt.

Gargalino had a total of 2 supervisory runs during tbe entire montb of September, in 2002, botb of which occurred on September 4, 2002. (Docket #527, Exhibit 3, Sgt. Gargalino's Monthly

Supervisory Activity Report, September 2002). Yet, Sgt. Gargalino's run sheets for September 4, 2002 still have not been produced by tbe City as of tbe present date. The City is shown to have repeatedly engaged in a pattern of dilatory and deceptive conduct by providing inaccurate, incomplete, and misleading responses to tbe Plaintiffs' discovery requests regarding DPD run sheets which, in addition to tbe non-production of Sgt. Gargalino's

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Activity Log for September 4, 2010, includes the misinformation provided to the Court about the production of Preliminary Complaint Reports for the same period (August through October 2002), which in fact have never been produced for that period, although DPD dispatcher Sandy Cardenas stated in her Affidavit that Sgt. Gargalino himself ordered the officers who responded to a disturbance call at the Manoogian Mansion in the fall of 2002 to fill out a Preliminary Complaint Report, even if they 'just drove by." (Docket #527, Exhibit 4, Affidavit of Sandy Cardenas). Another area in which the City's discovery responses are incomplete, inaccurate, and wholly misleading is with respect to the City'S assertion that it previously produced the requested e-mails of the DPD's Ella Bully-Cummings, Loronzo "Greg" Jones, and Michael Martin for the period requested from August 2002 through June 30, 2003, as was noted in the Court's October 26, 2010 Order. (Docket #482, p. 2, footnote 1). Following the hearing on that date, Plaintiffs' counsel re-examined four external hard drives previously produced by the City that are said to contain "data back-up tapes" from the DPD, -- i.e., computer files and e-mails -- that are believed to be copies of at least some of what was turned over by the City to the Michigan State Police in response to a subpoena issued by the MSP in May of 2003. (Note, MSP representatives indicated there had been 36 tapes that were sealed in a box after the City refused to turn those tapes over on the date the MSP originally attempted to obtain them but, when the same MSP representatives returned to pick up the tapes at a later time, there were only 6 tapes remaining in the box and the rest had disappeared. (See Docket #523, Plaintiffs' Responses to Defendants' Motions for

Summary Judgment and, specifically, Exhibit 57 thereto, Krebs Dep Transcript, at pp. 79-80, referencing 911 "tapes" that the City later said were actually DPD "data back-up" tapes, after Plaintiff had requested 911 tapes from the City and the City claimed the latter had been destroyed).

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Significantly, the City's initial position, when responding to Request for Production No. 11 from the Plaintiffs' July 30, 2010 discovery requests regarding e-mails, was that the four external hard drives copied from the DPD servers contained the materials requested by Plaintiffs, at least with respect to the e-mails to and from Ella Bully-Cummings, Loronzo "Greg" Jones, and Michael Martin, for the period from August 2002 through June of 2003. (See Document # 443-2, at pp. 5-6 of 6). The files on those hard drives appear to have been copied contemporaneously with the MSP's investigation, in 2003, from the City's servers that were used by the DPD at that time, as the time stamps on the copies produced to Plaintiffs show certain e-mails from various officers through mid-May of 2003, but none in late May, nor any in June 2003 as Plaintiffs requested. In fact, a review of the files on the four external hard drives copied from the DPD servers has revealed none that appear to contain a copy of Ella Bully-Cummings' mailbox, e-mail folders, and her e-mail files from the DPD server, nor those of Jones or Martin -- at least none that have been produced in a readable form to the Plaintiffs, though the City had also been compelled to produce the contents of the DPD "data back-up" files, as copied from the City'S servers, in a readable form. That has not been done with respect to any e-mails contained on the DPD "data back-up" files originally referenced by the City as evidencing its supposed compliance with respect to producing certain materials requested in Plaintiffs' RFP No. II from July 30,2010.
In sum, either 1) there are no e-mails to or from Bully-Cummings, Jones, and Martin

contained on the four external hard drives that were copied from the City's DPD servers to the MSP in 2003 and later copied to Plaintiffs, here, in whole or in part -- which means that the City did not provide complete copies to MSP of all files on the City's DPD servers at that time, or that the City has not provided the Plaintiffs, in this case, with complete copies of all the "data back-up" files that it previously turned over to the MSP in 2003 -- or 2) if the four external hard drives

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containing files copied from DPD servers in 2003 do contain e-mails to or from Bully-Cummings, Jones, and Martin, the same have not been produced to Plaintiffs counsel in a readable form as required by the prior Order of this Court with respect to the content of the DPD "data back-up" tapes. (See Docket #314, Order entered 3/911 0). Note, also, that the above referenced external hard drives are separate and distinct from those most recently disclosed by the City for the first time, on December 1, 2010, during a status conference held in Magistrate Judge Whalen's chambers, just prior to the evidentiary hearing that was scheduled to begin on that same date. Those materials, and additional information as well, are the subjects of documents currently in the possession of the Court which are maintained in accordance with the terms of a protective order, and they are also the subject of Plaintiffs' Renewed Motion to Permit Expert Inspection and Forensic Imaging. (Docket #545). Also a subject of that motion are other hard drives and computers containing data and files of Defendant Kwame Kilpatrick that have not even been copied to the Plaintiffs, as of the present date, much less produced in their original form such as would be necessary to obtain a complete, accurate, and authentic "forensic image" from which deleted e-mails could be recovered, as now appears necessary based on the lack of e-mails produced for Kilpatrick, Beatty, and Carter, particularly in light of the City'S admission on the record -- with respect to the e-mails requested by Plaintiffs for Kilpatrick and Beatty, in particular -- that, " ... upon their resignations during February of 2008, Beatty and Kilpatrick's email accounts and collected emails, whether in-coming or out going, were deleted and purged from the electronic storage system." (Emphasis added. See Defendant's Response to Plaintiffs' Motion to Compel, Docket #477, at p. 6). In addition, it has been detennined that Defendant Kilpatrick's office computer is now missing its hard drive. Kwame Kilpatrick's home computer has never been produced, nor even copied, to Plaintiffs. The content of the two other external hard drives in the City'S possession that

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contain additional computer data of Kilpatrick's downloaded from the City's servers has not been produced or copied, nor have the contents of a ''thumb drive" onto which other computer data of Kilpatrick's was copied. Moreover, the whereabouts of Christine Beatty's computer, a computer that was represented by the City's attorney as having been discarded, and literally ''trashed'', has never been identified. There are no e-mails whatsoever that have been produced for Christine Beatty, or Ruth Carter either. Among other deficiencies noted in the materials produced by the City, to date, is the fact that a disc supposedly containing e-mails of Mike Martin is not readable, and the corrupted disc has not been replaced by the City despite the request of Plaintiffs' counsel almost two weeks ago. In addition, recently provided e-mails for Ella Bully-Cummings and Loronzo Jones (separate and distinct from those referenced, above, from the DPD servers copied to the MSP in 2003) are incomplete, as the bulk of these e-mails contain little more than inter-departmental DPD "spam" (i.e., routine notices apparently sent to all members of the DPD) for the period after Ella BullyCummings left the DPD in September of 2008, and continuing through November and December of 2010 with respect to both she and Loronzo Jones. Particularly with respect to Ella Bully-Cummings, the e-mails produced by the City reflect a detailed organizational structure of folders complete with numerous sub-folders, including a folder labeled "Mayor KMK" Elsewhere in Bully-Cummings' email directory is a specific sub-folder labeled ''Flagg v. City of Detroit." These, and nearly all of the numerous other sub-folders in Bully-Cummings' mailbox recently produced by the City are completely EMPfY, and devoid of content, other than the "InBox" which, as noted above, consists primarily of unopened e-mails received after her departure from the DPD in 2008. Where have the e-mails gone from her folders and sub-folders, when were they removed, and why has there

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apparently been no search of any of the actual desktop computers, laptops, or external storage drives and other devices used for the purpose of backing up the City'S e-mail servers? Another significant issue worthy of sanction as it relates to the e-mails of the key players, Kilpatrick, Beatty, Carter, Bully-Cummings, Martin, and Jones, is the fact that the recent evidentiary hearing has also disclosed another misrepresentation in the City's earlier discovery responses - one that this Court relied upon to deny production of certain e-mails sent or received after June of 2003 -- based upon Defendant's assertion that the City's e-mails were not searchable for content, by keyword or otherwise. (See Docket #545-9 at pp. 7-9 of l3, Defendant City of Detroit's Response to Plaintiffs' Requests for Production, dated 12118/09. See, specifically, the City's response to RFP No. ll). Yet, at the recent evidentiary hearing, Terrance Sims of the City's

I.T. department revealed that, in fact, the City's e-mails are searchable for content, by keyword,
contrary to the representations made by the City upon which this Court relied when it declined to order production of the requested e-mails pertaining to specific subjects at that time. (See Docket #303, Order 1/28/10, p. 2, at par. 11). For each of the reasons stated above, a substantial sanction is warranted here, in addition to an order requiring payment of Plaintiffs' attorney fees and costs for the needless waste of the valuable time and resources of both this Court, and the Plaintiffs' counsel, that has resulted from Defendant's misleading and obstructionist conduct throughout the course of discovery.
In

accordance with the provisions of Fed. R. Civ. Proc. 37(b) and each of the authorities cited in the Plaintiffs' Memorandum of Law in Support of Plaintiffs' Request for Entry of Default and Other Sanctions Based Upon Spoliation of Evidence (Docket #488) that is also presently pending before the Court -- see for example, Forest Laboratories, Inc. v. Caraco Pharmaceutical Laboratories,

Ltd., 2009 U.S. Dist. LEXIS 31555 (B.D. Mich.) -- Plaintiffs request entry of the terminating

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sanction of default or, alternatively, adoption of an adverse inference precluding summary judgment, as well as an order requiring payment of substantial attorney fees and costs for the needless waste of the valuable time and resources of both this Court, and Plaintiffs' counsel, that has resulted from Defendant's obstructionist conduct throughout the course of discovery. WHEREFORE, the Plaintiffs respectfully request that this Honorable Court grant the relief requested herein, and in the Plaintiffs' original Motion for Sanctions Against Defendant City of Detroit Based Upon Failure to Comply With the Order Entered on October 26,2010 As Well As Incomplete and Inaccurate Discovery Responses (Docket #527), and also grant such other relief as is be fair, just, and equitable under the circumstances shown by the record in this case.

Respectfully submitted,

Dated: January 17, 2011

lsI Norman A. Yatooma

NORMAN YATOOMA & ASSOCIATES, P.C.

By: Norman A. Yatooma (P54746) By: Kirkland W. Garey (P342l2) Attorneys for Plaintiffs 219 Elm Street Birmingham, MI 48009 (248) 642-3600 nya@normanyatooma.com

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CERTIFICATE OF SERVICE I hereby certify that on January 17, 2011, I electronically filed PLAINTIFFS' SUPPLEMENTAL BRIEF IN SUPPORT OF THEIR MOTION FOR SANCTIONS AGAINST DEFENDANT CITY OF DETROIT BASED UPON FAILURE TO COMPLY WITH ORDER ENTERED ON OCTOBER 26, 2010 AS WELL AS INCOMPLETE AND INACCURATE DISCOVERY RESPONSES, with the Clerk of the Court using the ECF system which will send notification of such filing to all counsel of record. The above statements are true to the best of my knowledge, information, and belief.

Respectfully submitted,

Dated: January 17, 2011

lsI Norman A. Yatooma

NORMAN Y ATOOMA & ASSOCIATES, P.C.

By: Norman A. Yatooma (P54746) By: Kirkland W. Garey (P342l2) Attorneys for Plaintiffs 219 Elm Street Birmingham, Ml48009 (248) 642-3600 nya@normanyatoorna.com