Gail Mitchell
Fairview Heights Mayor Gail Mitchell performed as city attorney Kevin Hoerner's puppet in a March 9 deposition that they kept secret so it would not harm Mitchell's chances for reelection.
The secret deposition involves a class action lawsuit Fairview Heights filed against Orbitz, Hotels.com, Hotwire, Cendant Travel, Expedia, Lodging.com, Lowest Fare.com, Maupintour, Priceline.com, Site 59.com, Travelocity, Travelweb and Travelnow.com. City taxpayers propose to represent all Illinois cities that Internet travel services have purportedly cheated on hotel taxes.
Through April 11, six days before the election, U.S. District Judge David Herndon had not opened Mitchell's testimony to the public.
Hoerner acknowledged in his argument for secrecy that the deposition would embarrass Mitchell and influence the election.
According to a slender record on the deposition -- available to the public through a defense motion for sanctions -- Mitchell swore he knew nothing about the class action suit that Hoerner filed for the city in 2005.
Orbitz attorney Paul Chronis of Chicago asked Mitchell, "Have you seen any documents relating to this case at any time?"
Mitchell said no.
Chronis said, "Never seen the complaint, correct?"
Mitchell said no.
Chronis said, "Do you know that the lawsuit was filed against online travel companies?"
Mitchell said, "I didn't know that."
The same day Mitchell gave his deposition, Hoerner filed a motion for protective order to conceal it from the public until after the election.
He amended the motion March 13, arguing that the defense intended to embarrass, oppress and annoy the mayor.
Hoerner wrote, "The mayor has stated legitimate concerns regarding the improper use of testimony in the upcoming municipal elections."
Defense attorney Robert Shultz of Edwardsville opposed the motion for protective order on March 21.
He wrote, "Mayor Mitchell desperately wants to bury his testimony during his public election run..."
Shultz wrote that public interest in the deposition was heightened because the mayor is on the verge of an election.
The notion that plaintiffs don't really matter to attorneys pursuing class action claims was brought to life by St. Louis attorney Richard Burke, a member of the plaintiff's team.
On the one hand Hoerner argues that Mitchell's lack of knowledge would embarrass the mayor.
On the other hand Burke argues that Mitchell doesn't need to know anything.
In an April 2 motion Hoerner wrote, "Given the nature of the claims made by plaintiff in this lawsuit, there is indeed very little that the plaintiff or any of its witnesses need to know."
On Monday, April 9, Hoerner appeared before U.S. Magistrate Judge Donald Wilkerson, to argue for secrecy.
Hoerner asked Wilkerson to exclude "a person not interested in this case," taking notes in the back of the room.
Wilkerson said, "I will be cognizant of the sensitive nature of what we are dealing with."
Hoerner persisted. Wilkerson said, "I've got a plan."
Wilkerson asked Hoerner if he would protect the entire deposition or specific parts. Hoerner said he would protect the entire deposition.
Hoerner said it was not part of the judicial record.
Wilkerson asked Chronis why he would make it public.
Chronis said, "It is a public deposition from a public official in a public lawsuit brought on behalf of the public."
"The public should see what he says about a suit that he filed," Chronis said.
Wilkerson said he would rule Wednesday. He said, "One of you won't like my ruling."
He said the one that didn't like it could appeal to Judge Herndon.
Wilkerson's April 11 order scolded both sides for bad behavior.
"All parties to this lawsuit are cautioned that failure to follow the Federal Rules of Civil Procedure may and shall lead to sanctions," Wilkerson wrote.
He wrote that he was at a loss to understand how defense questions at the deposition could lead to discovery of admissible evidence.
"The mayor, while not irate, was certainly perturbed," he wrote.
Still, he denied Hoerner's motion for secrecy.
He wrote, "...as a publicly elected official, Mayor Mitchell should have had a diminished expectation that his deposition answers would not be subject to public access.
"Although the public may or may not have any interest in learning the details of Mayor Mitchell's involvement in the instant lawsuit, it nonetheless is an interest not to be lightly regarded, regardless of the subjective motivations of the Defendants in bringing it to the Court's attention."
Hoerner immediately objected and appealed to Judge Herndon.