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August 9, 2022

Brzana Seeks Sanctions Against Wesley Township For Forged Affidavit And Spoliation Of Evidence –

By John Kraft & Kirk Allen

On March 25, 2021

Wesley Township, IL. (ECWd) –

After learning of the forged affidavit during a Deposition, Plaintiff Brzana’s attorney filed a Motion for Sanctions against Wesley Township for their filing of a forged affidavit and failing to investigate its veracity before filing, and for their spoliation of evidence.

Select paragraphs from the Motion for Sanctions:

  • Rule 137 Motion for Sanctions against Defendants, Wesley Township and Wesley Township Road District, along with their counsel, Matthew DiCianni, for filing with this Court a forged Affidavit and failing to undertake a basic investigation of the source of the Affidavit before filing it with this Court as well as engaging in spoliation of evidence.
  • This case arises under the Illinois Freedom of Information Act 5 ILCS 140/1 et seq (hereinafter the “Act”). Plaintiffs seek sanctions against Defendants and their counsel on the basis that a forged Affidavit was filed with the court on behalf of Defendants without making any inquiry to authenticate the Affidavit when the Affidavit was delivered to Defendants’ counsel by a third party. Plaintiffs also seek sanctions as a result of spoliation of evidence by Defendants.
  • One of the Affidavits was procured directly from Sarah Norton by Plaintiffs’ counsel, (Exhibit B) and the second Affidavit (Exhibit A) purporting to be signed by Sarah Norton was obtained by Defendants’ counsel from John Norton. Sarah Norton was then asked to explain the obvious difference in the signatures on the two respective Affidavit documents. Sarah Norton explained that she had not signed Exhibit A, the Affidavit used by Defendants and submitted to this Court in defense of their case.
  • When Sarah Norton was cross-examined by Mr. DiCianni, she acknowledged that the document attached hereto as Exhibit A was a “forgery”, and Mr. DiCanni actually used the term “forgery” when positing his questions.
  • In this case the submission of a forged Affidavit in defense of non-compliance with the Act for each request shown in each count constitutes “bad faith” in relationship to each of those counts.
  • Because Sarah Norton, the then-acting FOIA officer, testified that the public body received the requests shown in the First Amended Complaint, a legal duty to preserve and maintain records arose under the Act because Section 3.5(a) of the Act…
  • The failure to comply with the duty to preserve FOIA records is evidenced by the Affidavit of Supervisor Medlin when viewed in conjunction with Sarah Norton’s deposition testimony. Supervisor Medlin testified in his Affidavit that the mandatory records associated with Plaintiffs’ FOIA requests did not exist as made in the ordinary course of business and were not in the public record. Accordingly, the records were not maintained by the public body as commanded by law under the Act. Accordingly, the failure to maintain the records, mandated by law, to be maintained by the public body is both a violation of FOIA and spoliation of evidence.

We will publish Wesley Township’s response to this Motion when we receive a copy of it.

Read the Motion including the Prayer for Relief (here) or below:

Motion for sanctions with exhibits

 

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2 Comments
  • PK
    Posted at 22:01h, 25 March

    Sorry, but I really like the format, item F in particular.

    F) Award Plaintiffs their reasonable attorney fees to be taxed against Defendants.

  • Mia Bellows
    Posted at 11:17h, 27 March

    Time for another New Board !

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