IN THE CIRCUIT COURT OF JEFFERSON COUNTYSTATE OF MISSOURI

KENNETH J. MOSS.Plaintiff,

ROBERT I(. SWEENEY, MAYOR RON COUNTS,CHIEF ROI]I]RT SHOCKEY, SUSAN BOONEAND KEVIN L. GARRISON,

Defendants.

Case No. l3JE-CC00134

Division No. 2

PLAINTIFF'S MOTION TO COMPELINTERROGATORY 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.

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"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."

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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

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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.

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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,

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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 PetruskaC. John Pleban, }y4024l90Lynette M. Petruska, MO4l2l2Brandy B. Barth, MO566682010 South Big Bend Blvd.St. Louis, MO 63117cnleban@oleban law.comloetruska@oleban law.combbarth@olebanlaw.comTelephone: (314) 645-6666Facsimile: (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.

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o)€provide substantive and complete answers to these discovery requests, and for such further relief H

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/s/ Lvnette Petruska