Wisconsin John Doe Fed Case - May 28 Request to Clarify Injunction

8/20/2019 Wisconsin John Doe Fed Case - May 28 Request to Clarify Injunction

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION

ERIC O’KEEFE, and

WISCONSIN CLUB FOR GROWTH, INC.,

Plaintiffs,

v.

FRANCIS SCHMITZ, in his official and personal capacities,

JOHN CHISHOLM, in his official and

personal capacities,BRUCE LANDGRAF, in his official and

personal capacities,

DAVID ROBLES, in his official and personal capacities,DEAN NICKEL, in his official and

personal capacities,

GREGORY PETERSON, in his officialcapacity,

Defendants.

Case No. 2:14-cv-0013

CIVIL L. R. 7(h) EXPEDITED NON-DISPOSITIVE MOTION FOR CLARI

Defendant Francis Schmitz (“Defendant”), pursuant to Fed. R. Civ. P. 65(d

R. Rule 7(h), respectfully moves the Court to clarify the scope of the prelimina

granted on May 6, 2014. Dkt. No. 181. Defendant, in support, states as follows.

Preliminary injunctions must comply with Rule 65(d), which provides that “

granting an injunction . . . must: . . . (B) state its terms specifically; and (C



668, 675 (7th Cir. 2008); Chicago Board of Education v. Substance, Inc., 354 F.3d

(7th Cir. 2003); IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 543 (7

Specifically, Defendant requests the Court clarify the scope of the prelimina

insofar as the operative language in the injunction not currently stayed by the Sev

May 7, 2014, Order 1 – “Defendant[] must cease all activities related to the investi

No. 181, at 26) – may be construed to enjoin Defendant from all activities relate

state court proceedings that arise from the John Doe proceedings and in which D

named party. Those state court proceedings currently include State of Wisconsin e

Schmitz v. Honorable Gregory Peterson, et al., (2014AP000417-W, 2014A

W2014AP000419-W, 2014AP000420-W, 2014AP000421-W); State of Wisconsin

Unnamed Petitioners v. Francis D. Schmitz, et al. (2013AP2504-W, 201

2013AP2506-W, 2013AP2507-W, 2013AP2508-W); State ex rel. Two Unnamed

Francis D. Schmitz, et al. (14AP296-OA).2 Defendant also requests the Court cla

of the preliminary injunction as to whether it encompasses Defendant’s discussions

for individuals and organizations that were subjects of the John Doe investigation

parties in the state-court proceedings.

The ambiguity of this language – “Defendants must cease all activities r

investigation” – presents a potential trap to Defendant that Rule 65(d) is designe

“The aims of Rule 65(d) are to . . . protect defendants from being held in contempt



follow a directive that was a trap because of its ambiguity.” Apex Oil Co., Inc., 579

40. “Rule 65(d) means that the parties need not guess their obligations at peri

sanctions.” Hispanics United of DuPage Cnty., 248 F.3d at 620. For nearly

Defendant has been attempting to confirm the scope of the injunction with the P

May 9, 2014, Defendant asked the Plaintiffs if they agreed with the position that

“Defendants must cease all activities related to the investigation” did not enjoin act

to the state court proceedings that have arisen from the investigation. May 9, 2014

R. Crocker to D. Rivkin, attached hereto as Ex. A. On May 14, 2014, Plaintiffs led

believe they agreed with this position: “We do not believe . . . that this language ex

proceedings, including these federal court proceedings, that do not seek to

compliance [with an order, subpoena, or other process issued in further

investigation].” May 14, 2014, Letter from D. Rivkin to R. Crocker, attached her

On May 20, 2014, Defendant sought confirmation of Plaintiffs’ position: “It ap

agree and that you acknowledge that the scope of the injunction does not

proceedings related to the John Doe now pending in state or federal court.” May 20

from R. Crocker to D. Rivkin, attached hereto as Ex. C. However, on May 21, 20

denied any such agreement: “To be clear: We do not agree to that, and I cannot

you thought that we would.” May 21, 2014, Letter from D. Rivkin to R. Croc

hereto as Ex. D. Defendant, in response, sought further clarification from the Pla

seek clarification as to what your ambiguous phrase ‘participation in legal



to settlements” that Plaintiffs believe will “undermine [Plaintiffs’] associationa

rights.” May 28, 2014, Letter from D. Rivkin to R. Crocker, attached hereto as Ex.

Because Defendant seeks certainty regarding the scope of the preliminary

order to confirm his compliance with it, Defendant now seeks clarification from th

whether the preliminary injunction enjoins Defendant from participating in the abo

court proceedings that have arisen from the John Doe investigation by filing plea

and other responses and whether the preliminary injunction enjoins Defendant’s dis

counsel for individuals and organizations that were subjects of the John Doe pro

that are parties in the above-listed state-court proceedings.

WHEREFORE, Defendant respectfully requests the Court grant Defendant

clarify the scope of the preliminary injunction.

Dated: May 28, 2014. s/ Joseph M. Russell

Randall D. Crocker (#1000251)

Joseph M. Russell (#1092211)Patrick C. Greeley (#1092436)Attorneys for Defendant Francis S

von Briesen & Roper, s.c.

411 E. Wisconsin Avenue

Suite 1000Milwaukee, WI 53202

Telephone: (414) 287-1238

Fax: (414) [email protected]

[email protected]

[email protected]



EXHIBIT A



May 9, 2014

VIA E-MAIL

David B. Rivkin, Jr.Baker & Hostetler LLP

Washington Square, Suite 11001050 Connecticut Avenue, NW

Washington, DC 20036-5304

Re: O’Keefe et al . v. Schmitz et al., Case No. 2:14-cv-00139-RTR

Dear David:

I am in receipt of your May, 7, 2014, letter – which I did not receive from you unti

because the letter was incorrectly addressed – as well as your letter of today. In light

Circuit Court of Appeal’s stay of the “return-and-destroy” portions of the injunctiodemands contained in your May 7, 2014, letter are no longer applicable. Therefore,

clarity, I only respond to the requests contained in your letter of today. Before doin

there are two preliminary issues I would like to raise.

First, the operative portion of the injunction that the Seventh Circuit did not stay

must cease all activities related to the investigation” – is phrased in such a manner

useful to understand each other’s position regarding its scope. Our position is that tdirected at only the investigation itself – with regard to which I confirm that our cl

all activities, in compliance with the injunction – but not to activities related to

proceedings that have arisen from the investigation, and not to activities related

action and its related appellate activities. Please let us know if you agree with this po

Second, the fifth footnote of the Court’s May 8, 2014, Order states that the Court “

to proceed on the plaintiffs’ damages claims while this case is pending on appeal.” that, consistent with the Court’s intent, all discovery should be stayed while Defen

appeals are pending. Please let me know if you agree with this position.



May 9, 2014

Page 2

set forth in your letter. With regard to “Confidentiality Requirements,” I likewise dclient and my firm need to disclose to you the arrangements we make for comp

Court’s order that we “not disclose or use the information they have gathered, and thscope of the injunction.” However, I am happy to review any authority establishing

or my firm needs to fulfill the “Notice Requirements” and “Confidentiality Requireare set forth in your letter.

As a final matter, I confirm that, absent a stay, our client and my firm plan to fully Court’s orders.

Sincerely,

/s/ Randall D. Crocker

Randall D. Crocker



EXHIBIT B



Case 2:14-cv-00139-RTR Filed 05/28/14 Page 2 of 3 Document 227-2






EXHIBIT C



May 20, 2014

VIA E-MAIL





Dear David:

Thank you for your recent letter.

It appears that we agree and that you acknowledge that the scope of the injunction dlegal proceedings related to the John Doe now pending in state or federal court. As

is not enjoined from his continuing participation in those pending matters.

Regarding compliance with the injunction, our client and my firm will fully comply athe Court’s orders. I have so confirmed in my letter of May 9, 2014. I did not,

“refuse to provide notice of those orders to [our] client’s ‘agents, servants, e

attorneys,’ as well as those with whom [our] client and those persons have acted ‘inor participation.’” I also did not state my “position” as being that “[our] client

inform these persons of the Court’s orders” or that “[our] client refuses to put othe

their shared legal obligations.”

I confirm, again, that our client and my firm have and will fully comply with the Co

to the notice requirements as set forth under Federal Rule Civil Procedure 65(d)(2).

our firm continue to observe, as you describe it, “the full language and spirit of the Cand continue to maintain the confidentiality of material gathered during the John Doe

I l fi h li d fi ill l i h h S h Ci



May 20, 2014

Page 2

In light of the briefing schedule issued the Seventh Circuit, I believe it is premadiscovery regarding Plaintiffs’ “official-capacity” claims.

I would very much like to discuss a discovery schedule with you at the appropriate tim

Sincerely,

/s/ Randall D. Crocker

Randall D. Crocker



EXHIBIT D






EXHIBIT E



May 22, 2014

VIA E-MAIL





Dear David:

I acknowledge, in response to your May 21, 2014, letter, that Plaintiffs’ positi

injunction “encompasses, inter alia, any attempt by [our] client to obtain compliance

subpoena, or other process issued in furtherance of the [John Doe] investigation,” bu“do not believe . . . that the injunction precludes [our] client’s participation in lega

including these federal court proceedings that do not seek to enforce such compliance

still seek clarification as to what your ambiguous phrase “participation in lega

encompasses.

To that end, let me be more specific. As you know, our client is a named party

proceedings arising from the John Doe investigation. Those state court proceedingState of Wisconsin ex rel. Francis Schmitz v. Honorable Gregory Peterson, et al ., (2

W, 2014AP000418-W, W2014AP000419-W, 2014AP000420-W, 2014AP000421

Wisconsin ex rel. Three Unnamed Petitioners v. Francis D. Schmitz, et al . (202013AP2505-W, 2013AP2506-W, 2013AP2507-W, 2013AP2508-W); and State

Unnamed Petitioners v. Francis D. Schmitz , et al. (14AP296-OA).1

Based on the language you used in your letter of May 14, 2014 – “we do not belieinjunction precludes your client’s participation in legal proceedings” – you have led

that Plaintiffs do not believe the injunction precludes our client’s participation in th

di Pl fi h i Pl i iff ’ i i Of



EXHIBIT F







Documents

Wisconsin John Doe Fed Case - May 28 Request to Clarify Injunction