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December 29, 2010 | 09:20 AMLake Geneva Alderwoman Mary Jo Fesenmaier soon will have to appear at a deposition to answer questions about her e-mails regarding the Mirbeau and Hummel development proposals.
On Tuesday afternoon, after more than an hour of discussion, Walworth County Circuit Court Judge John Race ruled the Lake Geneva Regional News can depose Fesenmaier. Race also said she has to respond to written questions about her e-mails.
Fesenmaier is involved in a lawsuit with the Regional News. The newspaper claims Fesenmaier failed to produce her e-mail records related to the development proposals. Both developers are suing the city for a combined $250 million.
The Regional News was asking the court to sanction Fesenmaier for her failure to appear at a deposition last month. However, Race did not rule on that motion. Instead, he ordered the plaintiffs be allowed to depose Fesenmaier.
Fesenmaier's attorney, Amy Doyle, told Race Fesenmaier was not made aware of the date or time of the deposition. Doyle said she had a pending motion in court asking to quash the deposition. The court's busy docket did not allow the judge to hear the motion to quash, so Doyle said she didn't tell Fesenmaier to attend the deposition. Doyle told the plaintiffs Fesenmaier wouldn't be appearing at the deposition.
"I don't think that's a good idea," Race said.
Regional News attorney Christa Westerberg said a deposition is one way to receive answers to questions regarding the open records requests.
Fesenmaier has stated in court documents she is "not in possession of the records responsive to the requests." In recent documents, Fesenmaier's attorney also has stated it wasn't her practice to "retain" her records.
Doyle said why Fesenmaier doesn't have any documents is "not part of this case." She also said any documents pertaining to the records request made by the Regional News in February and March are attorney-client privilege.
Westerberg argued there are procedures to determine what is privileged information. She also questioned why, initially, the plaintiffs were told there weren't any records and then there were records, but they were all privileged.
Race said public officials "must keep their records." He said the open meetings and open records laws are broad, while privileged document laws are narrow. He said those public records laws exist to ensure openness.
A third set of discovery questions were sent to Fesenmaier late last month, which asked if Fesenmaier was requested to provide Mirbeau and Hummel related documents to the city and to her attorney after the suits were commenced. It also asks specifics regarding the 18 bankers boxes of documents retrieved from the computer hard drive searches last year and any dates in which Fesenmaier received training regarding Wisconsin Open Records law in her capacity as an alderwoman.
The Regional News motion for sanctions states during the discovery process in the case, Fesenmaier's responses have been "dilatory and evasive."
The motion for sanctions states "it may be more efficient simply to ask Ms. Fesenmaier directly about the facts of the case." That's when a deposition was scheduled for Nov. 17. On Nov. 10, the defendants made a motion to quash the deposition and for a summary judgement.
"The court did not excuse Ms. Fesenmaier from attending her deposition," the motion states. "Despite this, Fesenmaier clearly requires additional motivation to appear at her deposition. Sanctions would help Ms. Fesenmaier achieve her obligations under the law, and would deter her and others from engaging in similar dilatory conduct."