EAST ST. LOUIS – Former Madison County administrator Joseph Parente destroyed the operating system of his computer in order to hide evidence in a civil suit, county veteran assistance superintendent Brad Lavite alleged on Aug. 16.
His lawyer, Tom Burkart of Hamel, moved for sanctions including an instruction for jurors to presume the lost information was unfavorable to the defense.
He wrote that under federal rules, sanctions could include default judgment.
“Joseph Parente’s deliberate action in disabling access to all files on his computer was done with the intent to deprive plaintiff of access to this information and the possible use of it in this litigation,” Burkart wrote.
“The county defendants, including their counsel, failed to take any steps to preserve this information.”
John Gilbert represents Parente, former board chairman Alan Dunstan, and State’s Attorney Tom Gibbons.
Heidi Eckert represents Lakin.
On Aug. 21, Burkart filed an electronic message he sent them three days after voters replaced Dunstan with Kurt Prenzler.
It shows that Burkart told them, “I have already advised all people associated with the veterans assistance commission office to preserve all electronic devices, both personal and business.”
“I trust you have done the same,” he wrote.
“I would suggest this is especially important since the recent election results, although not yet official, indicate Mr. Dunstan will no longer be an officer of the county.”
Lavite sued Parente, Dunstan, Gibbons, and sheriff John Lakin last year, alleging violations of free speech, free assembly and due process.
In 2015, Parente banned Lavite from all county property including the veteran assistance office on the first floor of the administration building.
Parente acted after Lavite kicked a window out of a Wood River police car.
Lavite’s counselor at the U.S. Veterans Administration changed his medication and pronounced him fit to work, but Parente didn’t lift the ban.
The veteran assistance commission stood by Lavite and retained Burkart, who sued in Madison County court for an injunction, salary, and legal fees.
Burkart claimed Parente fired Lavite not in fear for public safety but in retaliation for actions Lavite had taken and statements he had made.
The county defendants moved to dismiss the suit, and Associate Judge Stephen Stobbs granted the motion.
Fifth District appellate judges reversed Stobbs in August 2016, finding that elected officials possess no authority over veteran assistance commissions.
Stobbs recused himself, and Chief Judge Dave Hylla assigned the case to Clinton County Circuit Judge William Becker.
The case would later return to the Fifth District, where Lavite argues that defendants haven’t complied with last year’s order.
In the federal case, which Burkart filed immediately after the Fifth District reversed Stobbs, District Judge David Herndon set trial for this December.
Last November, Magistrate Judge Reona Daly set an Aug. 4 deadline for discovery and an Aug. 18 deadline for dispositive motions.
In May, Burkart amended Lavite’s complaint to add an allegation that defendants wrongfully assumed control of about $342,000 in commission money.
Burkart proposed an action for accounting, with judgment against officials in an amount found to be due to the commission.
Defendants moved to dismiss the complaint in June, arguing that Lavite must pursue retaliation claims through the Madison County suit.
On Aug. 16, twelve days past the discovery deadline, Gilbert and Eckert moved to extend deadlines.
They didn’t move to delay trial, but they asked for exactly that.
“Due to the nature and extent of the allegations contained in plaintiff’s complaint as well as the number of defendants, defendants will require time beyond the Aug. 4 date in order to conclude both written and deposition discovery,” they wrote.
“Further, this case has been delayed due to the appeal in the underlying and parallel state court case.”
They respectfully requested deadlines of Dec. 31 for written discovery, March 31 for party depositions, and May 31 for dispositive motions.
“Finally, defendants request that the trial month be reset for December 2018,” they wrote.
On the same date, Burkart sought sanctions for the allegedly intentional destruction of Parente’s operating system.
He sought separate sanctions over discovery, claiming defendants took nine months to make initial disclosures that they should have made in 14 days.
He asked that all allegations in the complaint be taken as established, or in the alternative that defendants be barred from presenting information or calling witnesses identified in the disclosures.
On Aug. 17, Gilbert moved to extend the deadline for response to Sept. 15.
Burkart opposed the extension on Aug. 18, denying that defendants require additional time to investigate destruction of information.
He wrote that the new administration knew of the destruction as early as December 2016.
“As early as March 15, the new county chairman requested Madison County State’s Attorney, the very office that requests this extension, to officially investigate the destruction of electronically stored information on Dunstan and Parente’s computers,” Burkart wrote.
He wrote that Lavite’s motion for sanctions wouldn’t apply to Lakin, unless the sheriff wished to admit involvement in the destruction.
On Aug. 21, Burkart objected to the motion for a new schedule.
He wrote that pendency of the Madison County case in no way interfered with the ability of defendants to propound discovery.
He wrote that they must show excusable neglect for failing to comply with the discovery deadline.
“Defendants have not alleged facts establishing excusable neglect and do not argue that such exists,” he wrote.
As of Aug. 21, Herndon had not resolved the motion to dismiss Lavite’s complaint.