rounds, daugaard et al response

UNITED STATES DISTRICT COURTDISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

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JEFF BARTH, personally and in his capacityas sitting County Commissioner for theCOUNTY OF MINNEHAHA, SOUTHDAKOTA, and all others similarly situated,

Petitioners,

vs.

MARION M. MIKE ROUNDS, JEFFREYT. SVEEN, ROBERT TAD PERRY,

Respondents.

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JEFF BARTH, personally and in his capacityas sitting County Commissioner for theCOUNTY OF MINNEHAHA, SOUTHDAKOTA, and all others similarly situated,

Petitioners,

vs.

HARVEY JEWETT IV, JACK R.WARNER, JAMES F. SHEKLETON,JOHN H. MEYER, DR. JAMES SMITH andthe HONORABLE DENNIS DAUGAARD,in his capacity as Governor of the State ofSouth Dakota,

Respondents.

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14-mc-00118-KES14-mc-00130-KES

RESPONDENTS M. MICHAELROUNDS, ROBERT TAD

PERRY, HARVEY JEWETT IV,JACK R. WARNER, JAMES F.

SHEKLETON, JOHN H.MEYER, DR. JAMES SMITH,AND DENNIS DAUGAARDSMEMORANDUM OF LAW IN

OPPOSITION TOPETITIONERS RULE 27

PETITION

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Case 4:14-mc-00118-KES Document 12 Filed 10/20/14 Page 1 of 23 PageID #: 57

14-mc-00118-KES; 14-mc-00130Respondents Memorandum of Law in Opposition to Petitioners Rule 27 Petition

It is unclear whether Jeff Barth is actually acting with the Minnehaha County1Commissions approval or with the approval of any other similarly situatedCommissioners as indicated in the Petitions caption. Neither he nor anyone purportingto have the authority to act on behalf of the County Commission has signed the Petition.

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The Petition is properly denied because it is substantively deficient, procedurally

deficient, and unnecessary because the appropriate steps have already been taken to

protect against the loss of any EB-5 materials that may be under Respondents control.

BACKGROUND

On September 22, 2014, a Pre-Complaint Petition to Preserve Evidence was

filed by Jeff Barth, in his personal capacity and in his capacity as sitting County

Commissioner for the County of Minnehaha, South Dakota, and supposedly on behalf

of all others similarly situated. (Doc. 1.) The Petition cites Federal Rule of Civil1

Procedure 27(a) as the supposed mechanism authorizing the relief requested in the

Petition. (Doc. 1 at 3.) The Petition filed in 14-mc-118-KES identifies the Respondents

as Marion M. Mike Rounds, Jeffrey T. Sveen, and Robert Tad Perry. Various

exhibits have also been submitted in support of the Petition.

On September 29, 2014, another Petition was filed by Jeff Barth in 14-mc-130-

KES. It is substantively the same as the earlier Petition filed on September 22, 2014, and

it is supported with the same exhibits as well. The only difference is that the September

29 Petition identifies Harvey Jewett IV, Jack R. Warner, James F. Shekleton, John H.



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Meyer, Dr. James Smith, and Dennis Daugaard, in his capacity as Governor of the State

of South Dakota, as Respondents. Accordingly, both Petitions will be referred to as the

Petition. This Memorandum is submitted on behalf of Mike Rounds, Tad Perry,

Harvey Jewett, Jack Warner, James Shekleton, John Meyer, Dr. James Smith, and Dennis

Daugaard (collectively referred to as Respondents). The memorandum filed on behalf

of these Respondents is the same for both 14-mc-118-KES and 14-mc-130-KES.

ANALYSIS

Rule 27 requires a petitioner to establish several elements when requesting an

order from the Court to preserve evidence. Rather than follow the clear directives in

Rule 27, Jeff Barth asserts unsubstantiated claims and allegations in an attempt to

circumvent several well-established legal principles. It fails to establish the existence of

a cognizable federal claim. It also fails to demonstrate that evidence will be lost by any

of the Respondents. And multiple litigation holds are already in place to protect against

the inadvertent loss of evidence. This Court should therefore deny the Petition.

I. The Petition fails to identify a cause of action that could properly be broughtin a federal court.

A plain reading of Rule 27(a)(2) establishes that it can only be invoked if the

contemplated Complaint involves a matter cognizable in a United States court[.] Stated

differently, the Petition must establish that the action petitioner contemplates bringing



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would be cognizable in a court of the United States[.] In re Petition of MacCormack,

2000 WL 526313, at *1 (D. Kan. Apr. 19, 2000) (quoting In re Boland, 79 F.R.D. 665,

667 (D.D.C. 1978)). See also In Re Tsymbal, 2011 WL 8218997, at *15 (D.N.J. Dec. 9,

2011) (denying Rule 27 petition because the [p]etitioner has not demonstrated how/why

her allegations are cognizable in any United States court); In re I-35W Bridge Collapse

Site Inspection, 243 F.R.D. 349, 352 (D. Minn. 2007) (The petition must also show that

the anticipated lawsuit will be within the jurisdiction of the federal courts. (citing

Dresser Indus., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979)); Petition of

State of North Carolina, 68 F.R.D. 410, 412 (S.D.N.Y. 1975) (denying Rule 27 petition

because the petitioner State is unable even to demonstrate that the anticipated action

will be within federal jurisdiction (citation omitted)). Here, the Petition fails to identify

how the anticipated Complaint would be cognizable in a United States court[.] See

Fed. R. Civ. P. 27(a).

The Petition contains a heading labeled II. Jurisdiction and Venue. (Doc. 1 at

4.) It reads as follows: Jurisdiction and venue are proper in this Court, because The

File(s) are/is believed to be located in, and the parties are all within this Jurisdiction. The

amount in controversy meets the definition of this Court. (Doc. 1 at 4.) The last

sentence, The amount in controversy meets the definition of this Court, suggests that

the Complaint would invoke what is commonly referred to as diversity jurisdiction. See



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28 U.S.C. 1332 (The district courts shall have original jurisdiction of all civil actions

where the matter in controversy exceeds the sum of $75,000 . . . and is between . . .

citizens of different States[.]). Jurisdiction under 28 U.S.C. 1332, however, would

not exist in any Complaint by Jeff Barth against any of the Respondents because they are

acknowledged residents of South Dakota. (Doc. 1 at 5, 7, 8, 10, 11, 12, 13.) Thus, the

Complaint could not be cognizable in federal court based on a diversity claim.

Because diversity jurisdiction would not exist, the only basis for a cognizable

claim in federal court would be a claim arising under federal law. See 28 U.S.C. 1331

(The district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.). The Petition, however, fails to

identify what federal law the Complaint would rely on to assert a claim against

Respondents in a federal court.

The only federal statute identified in any of the filings in this case is the Freedom

of Information Act (FOIA) that was selected in the civil filing statement. (Doc. 3.)

Because the Petition itself fails to identify the federal cause of action that the Complaint

would allege, one guess would be that the Complaint would attempt to rely on the

Freedom of Information Act. If so, such a claim against the Respondents could not be

properly filed in any court, let alone federal court, because the Freedom of Information

Act only applies to the federal government and federal agencies. See, e.g., Rimmer v.



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Holder, 700 F.3d 246, 258 (6th Cir. 2012) (As numerous sister circuits have noted, it is

beyond question that FOIA applies only to federal and not to state agencies. (internal

quotations and citations omitted)); Grand Cent Pship, Inc. v. Cuomo, 166 F.3d 473, 484

(2d Cir. 1999) ([I]t is beyond question that FOIA applies only to federal and not to state

agencies. (citations omitted)); Philip Morris, Inc., v. Harshbarger, 122 F.3d 58, 83 (1st

Cir. 1997) (FOIA . . . applies only to federal executive branch agencies.); St. Michael's

Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981) (noting that the

definition of agency under FOIA does not encompass state agencies or bodies).

Thus, a Complaint against any of the Respondents that would rely on FOIA would

simply not be cognizable in a federal court because the Respondents are not part of any

federal agency.

Rather than identify what federal cause of action the Complaint would allege, the

Petition states that It is about a not-yet-cognizable complaint that will allege a pattern

and course of conduct so outrageous, so unscrupulous and so conniving-that it boggles

the reasonable mind. (Doc. 1 at 2.) Such vague and hostile allegations, while

potentially useful in political attack ads, have not been, are not currently, and will never

be enough to state a plausible federal claim.



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A. Jeff Barth does not have standing to file any anticipated Complaint.

Jeff Barth does not have standing under Article III of the Constitution to bring any

federal claim against Respondents based on the allegations outlined in the Petition. To

demonstrate standing, the plaintiff must show:

(1) that he or she suffered an injury in fact, which is an invasion of a legally

protected interest that is concrete and particularized and actual or

imminent, not conjectural or hypothetical;

(2) the existence of a causal connection between the injury and the conduct

complained of that is fairly . . . trace[able] to the challenged action of the

defendant and not . . . th[e] result [of] the independent action of some third

party not before the court; and

(3) that it is likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 560-61 (1992) (citations and quotations

omitted) (alterations in original). See also Neighborhood Enters., Inc. v. City of

St. Louis, 644 F.3d 728, 735 (8th Cir 2011).

The Petition provides no factual allegations that Jeff Barth has suffered an injury

in fact or that he will suffer an injury in fact. For example, the Petition does not state that

Jeff Barth was an investor in any project that received funds from investors utilizing the



In fact, Jeff Barth acknowledged in a TV interview with a Keloland news2reporter, Jared Ransom, that the Petition was filed because the citizens have an interestin this and I hope we can find out whats going on. Seehttp://www.keloland.com/newsdetail.cfm/mhaha-county-commissioner-barth-files-papers-over-eb-5/?id=169750 (video recording at 1:15 to 1:21).

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EB-5 program. (Doc. 1 at 2.) Indeed, the Petition never even alleges that he personally

lost any funds or suffered any personal injury or loss whatsoever. Simply put, the

Petition fails to identify any injury in fact suffered by Jeff Barth that would need to be

established in the anticipated Complaint.

Furthermore, the Petitions generalized and unsubstantiated assertion that there

was a Fail[ure] to ensure that the tens of millions of dollars in fees . . . were remitted to

their rightful owners the taxpayers and citizens of the State of South Dakota is a

generalized grievance supposedly suffered by Jeff Barth as a state taxpayer. Such2

generalized grievances, however, are not sufficient to establish standing under Article III

of the United States Constitution. See Daimlerchrysler Corp. v. Cuno, 547 U.S. 332,

343-44 (2006).

Indeed, the United States Supreme Court has repeatedly explained that someone in

Jeff Barths position cannot allege the necessary concrete and particularized injury

when the claim is premised on general political issues like taxation and revenue

allocation. See id. at 345 ([T]he decision of how to allocate any such [revenue] savings

is the very epitome of a policy judgment committed to the broad and legitimate



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discretion of lawmakers, which the courts cannot presume either to control or to

predict. (citation omitted)). As the Supreme Court explained, the such an alleged

injury is necessarily conjectural or hypothetical in that it depends on how legislators

respond to the situation. Id. at 344 (citation omitted).

Simply put, Jeff Barth does not have standing to bring a Complaint against

Respondents based on the allegations in the Petition. And if Jeff Barth does not have

standing on his own behalf, he cannot not have standing to bring a claim on behalf of all

others similarly situated as indicated in the Petitions caption. Thus, the Petition is also

properly denied because a Complaint would not be cognizable in a federal court due to a

lack of Article III standing.

II. The Petition is properly denied because it is being used as a discovery tool todraft a Complaint.

Because the Petition fails to identify the cause of action that would be alleged, it is

clear that Jeff Barth is trying to use Rule 27 to search for something so he can file some

type of Complaint. Indeed, the opening line in the Petitions Memorandum of Law

section establishes that Jeff Barth is asking for this Court to expand[] the scope of Rule

27 to turn it into a general discovery tool. (Doc. 1 at 15.)

This request goes directly against the overwhelming number of cases that prohibit

petitioners from using Rule 27 as a means of conducting discovery to establish a lawsuit.



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See, e.g., Ash v. Cort, 512 F.2d 909, 912 (3d Cir. 1975) (Rule 27 is not a substitute for

discovery. (citing cases)); In re Liquor Salesmens Union Local 2D Pension Fund, 2012

WL 2952391, at *6 (E.D.N.Y. July 19, 2012) ([I]t is well-settled that Rule 27 is not a

vehicle for general discovery before an action is commenced and should not be used to

determine whether a cause of action exists[.] (internal quotations and citation omitted)

(citing cases)); In re Petition of Allegretti, 229 F.R.D. 93, 96 (S.D.N.Y 2005) (In other

words, Rule 27 may not be used as a vehicle for discovery prior to filing a complaint.);

In re Chester County Elec., Inc., 208 F.R.D. 545, 547 (E.D. Pa. 2002) (confirming that

Rule 27 is not a mechanism to draft a complaint or conduct pre-trial discovery (citing

cases)); Petition of Ford, 170 F.R.D. 504, 508 (M.D. Ala. 1997) (As stated, the

language in Rule 27 is clear that the rule authorizes the perpetuation of evidence, not the

discovery or uncovering of it. (citing cases)); In Matter of Gurnsey, 223 F.Supp. 359,

360 (D.D.C. 1963) (It is not a method of discovery to determine whether a cause of

action exists[.] (citing cases)); Petition of State of North Carolina, 68 F.R.D. 410, 412

(S.D.N.Y. 1975) ([S]everal courts have held that a Rule 27 petition cannot be used for

the purpose of ascertaining facts to be used in drafting a complaint. (citing cases)). As

the Minnesota District Court in In re I-35W Bridge Collapse Site Inspection succinctly

explained, In other words, the [petitioner] must provide an explanation for why it

cannot presently bring any lawsuit on behalf of any client, and its explanation cannot be



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that it has not yet learned enough about the case to be able to file specific claims against

specific defendants[.] 243 F.R.D. at 253.

In support of the suggested misuse of Rule 27, the Petition cites three non-

authoritative cases that went against the otherwise plain meaning and purpose of Rule 27.

(Doc. 1 at 15.) The first case is In re Alpha Industries, Inc., 159 F.R.D. 456 (S.D.N.Y.

1995), which concluded that the fact that petitioner must delay bringing suit until

receiving the information sought is a sufficient showing to allow the use of Rule 27 to

perpetuate respondents testimony. Id. at 457. In support of this conclusion, the court

in Alpha Industries relied on Professor Moores comment that ordinarily, a showing

that the petitioner is presently unable to bring the expected action or cause it to be

brought is sufficient show of the danger of the loss of evidence by delay. Id. (quoting

4 Moores Federal Practice 27-32). As the Eastern District of New York Court in Liquor

Salesmens Union noted, however, Moores Federal Practice subsequently disapproved

of the reasoning and holding in Alpha Industries: Alpha Industries [i]s a minority-view

case and . . . district courts are surely correct in rejecting Alpha Industries holding).

Liquor Salesmens Union, 2012 WL 2952391, at *5 (quoting 6-27 Moores Federal

Practice 27.13). See also Petition of Ford, 170 F.R.D. 504, 508 (M.D. Ala. 1997)

([T]he Alpha Industries court omits the critical opening sentence to [Professor Moores]

commentary: The reasons for perpetuating the proposed testimony must demonstrate



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danger of losing the evidence by delay.). Moreover, a large number of subsequent

decisions have expressly refused to follow Alpha Industries. Liquor Salesmens Union,

2012 WL 2952391, at *5 (collecting cases).

The last two cases identified in the Petition actually undermine what Jeff Barth is

trying to do with Rule 27 here. In Lubrin v. Hess Oil Virgin Islands Corp., 109 F.R.D.

403 (D. Vi. 1986), the request under Rule 27 was made after filing an equitable action.

Id. at 404. The court in that case specifically stated that a Rule 27(a) deposition may not

be used as a substitute for discovery[.] Id. Thus, Lubrin explicitly contradicts what Jeff

Barth is asking this Court to do with Rule 27.

And in Reints v. Sheppard, 90 F.R.D. 346 (M.D. Pa. 1981), the court stated,

without any explanation, analysis, or supporting authority whatsoever, that it would be

willing to grant such a request in a situation where [a] plaintiff truly did not have

knowledge of sufficient facts to plead his case. Id. at 347. Ultimately, however, the

court denied the request, seemingly made under Rule 27, because the basic facts upon

which plaintiff is to base his claim are not in the exclusive possession of the defendants.

Id. at 347. Thus, the court effectively reasoned that the plaintiffs difficulty in drafting a

complaint could not be solved through his attempt to use Rule 27 to further develop his

previously rejected Complaint. Id.



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Here, the Petition states that Joop Bollen is the one who walked off with all the

EB5 files (state records) when he resigned his position at Northern State University Dec.

21, 2009, without requesting permission to do so. (Doc. 1 at 6). And the Declaration of

Richard Engels in Support of Petitioners Pre-Complaint Petition to Preserve Evidence

states that Richard Engels, on behalf of Jeff Barth, is unable to file a cognizable

complaint as of todays date because the SDRC executive(s) still refuses to return or

provide any of the public documents wrongfully converted to private custody. At the

risk of stating the obvious, the Respondents identified in the Petition are not Joop Bollen

or SDRC.

Thus, Jeff Barths request for this Court to misapply Rule 27 so he can perform

some general discovery in order to develop a Complaint is based on one universally

discredited decision out of New York. The better approach would be to allow Rule 27 to

be used only when the petitioner has established a real need to preserve already known

evidence before a federal cause of action can be filed in federal court. That is, it should

be used how it is written: as a procedure for preserving testimony before the bringing

of a federal cause of action. Webb v. Dyer County Bd. of Educ., 471 U.S. 234, 243 n.17

(1985) (emphasis added).

The prohibition against using Rule 27 to be used as a general discovery tool

before a Complaint is filed is particularly applicable in this situation. The allegations



While none of these defenses are discussed in detail because the Petition fails to3identify any actual claims, the Respondents expressly reserve the right to assert any andall defenses if a Complaint is filed.

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against the Respondents, though general and vague, pertain to their official capacities as

current and former South Dakota government officials. And in a civil suit, government

officials are afforded the opportunity to raise qualified immunity and other similar

defenses before discovery would commence. Hughbanks v. Dooley, 2011 WL 3502484,3

at *1 (D.S.D. Aug. 10, 2011) (Qualified immunity protects [] officials from litigation

itself, not merely liability. (citing Mitchell, 472 U.S. at 526)). Allowing Rule 27 to be

used for general discovery purposes, as Jeff Barth intends to use it against the

Respondents before any immunity defenses can be raised, will effectively destroy the

goals and purposes of all immunity defenses. That cannot be allowed.

One of the purposes behind qualified immunity is to protect against distraction of

officials from their governmental duties, inhibition of discretionary action, and

deterrence of able people from public service. Mitchell v. Forsyth, 472 U.S. 511, 526

(1985) (citations omitted). And as Justice Stevens observed, Persons of wisdom and

honor will hesitate to . . . serve in these vital positions if they fear that vexatious and

politically motivated litigation associated with their public decisions will squander their

time and reputation, and sap their personal financial resources when they leave office.

Id. at 542 (1985) (Stevens, J., concurring in the judgment). See also Gray v. Bell, 712



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F.2d 490, 496 (9th Cir. 1983) (recognizing that official immunity serves the important

goal of protecting against the inequity of exposing officials to vicarious liability for the

acts of subordinates and promoting the idea that official accountability is more

appropriately enforced through the ballot . . . than in private civil suits). In light of

these important interests, [u]nless the plaintiffs allegations state a claim of violation of

clearly established law, a defendant pleading qualified immunity is entitled to dismissal

before the commencement of discovery. Mitchell, 472 U.S. at 526 (citations omitted).

Here, however, the Petition does not explain how any of the Respondents violated

any clearly established law. Indeed, the Petition fails to even identify what federal

cause of action would even be alleged in the anticipated Complaint. To allow pretrial

discovery under these circumstances would undermine one of the primary functions of

official immunity. As the United States Supreme Court has stated, Until this threshold

immunity question is resolved, discovery should not be allowed. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).

At least one other court has recognized that Rule 27 is not an appropriate means to

avoid applicable immunity defenses. In In re Boland, 79 F.R.D. 665 (D.D.C. 1978), the

district court explained that The difficult and sensitive issues concerning immunity . . .

which underlie the [Rule 27] petition are more properly developed after a complaint and

responsive pleadings have been filed and the issues have been joined by appropriate



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motions than by the truncated procedure sought to be employed here. Id. at 668-69. As

the Boland court recognized, Rule 27 cannot be allowed to circumvent the various

immunity defenses, including sovereign immunity, qualified immunity, Eleventh

Amendment immunity, congressional immunity, prosecutorial immunity, or judicial

immunity.

If Rule 27 is used as Jeff Barth intends to use it, such petitions will become the

new norm before any civil case is filed against government officials. Anyone with an ax

to grind or the desire to annoy governmental officials, including any taxpayer or prisoner

who wishes to establish a RICO claim against government officials, will use this Rule

in the same manner that Jeff Barth is trying to use this Rule. Cf. In re I-35 W Bridge

Collapse Site Inspection, 243 F.R.D. at 354 (If this Court were to [grant the Rule 27

petition], this Court would also have to permit other[s] . . . to do the same.). Using Rule

27 as Jeff Barth is trying to use it, without establishing the existence of a cognizable

federal claim, will become a means to circumvent the immunity defenses that would

otherwise protect government officials and allow for litigious individuals to threaten and

harass officials.



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III. Most importantly, the Petition is properly denied because there is no risk thatany evidence in the Respondents control will be lost.

Rule 27 allows a party to take depositions prior to litigation if [the petitioner] . . .

establishes a risk that testimony will be lost if not preserved. Penn Mut. Life Ins. Co. v.

United States, 68 F.3d 1371, 1373 (D.C. Cir. 1995). The Petition fails, however, to

establish any risk that evidence in Respondents control will be lost. Instead, the Petition

states that Jeff Barth is asking for adequate assurance that relevant information is not

being destroyed, as credible claims have been stated that some Respondents have

shredded documents. (Doc. 1 at 3.)

The credible claims are actually one sentence in an appellate brief pertaining to

an unrelated civil case entitled Hutterville Hutterian Brethren, Inc. v. Jeffrey T. Sveen,

13-3160. (Doc. 1 at 3 (citing Exhibit C at 7 in attached Declaration of Richard

Engels).) Specifically, Paragraph 7 of Exhibit C in Richard Engels Declaration reads as

follows: Attached [as Exhibit C] is a true and correct copy of an excerpt of the

litigation memorandum in re RICO claims from an unrelated case against Mr. Sveen

and his Law Firm. (Doc. 2 at 7 (emphasis added) (citing United States Court of

Appeals for the Eighth Circuit No. 13-3160 Appellants Brief and Addendum page 21 &

22).) A statement in a brief made by the party who lost at the trial court level in an

unrelated case can hardly be considered credible.



The brief does not identify which Siegal Barnett business the truck was seen by. 4The building in Aberdeen is located in the heart of the business district at 415 S. MainSt., along with many other Aberdeen businesses. And the Sioux Falls office is in acommercial building at 515 S. Cliff Ave, along with several other business. Thus, bothbusiness locations are surrounded by other businesses that may well have been using theshredding businesss services.

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More importantly, the supposedly credible claims that support the Petitions

statement that some respondents were shredding documents reads as follows: The

next day, a document shredding truck was observed at Siegel Barnetts offices. (Doc. 2-

3, Ex. C at 1.) That is it; there is no elaboration whatsoever. Jeff Barth, as the Petitioner,

never says that he saw the truck. Richard Engels, the person who signed the Petition and

the Declaration, never says that he saw the truck. There is nothing about why the truck

was there or which business(es) the truck was there to serve. There is nothing about4

whether any documents were even shredded. And to the extent that the statement in the

brief is intended to insinuate wrongdoing, such a conclusion would be patently

unreasonable. Document shredding trucks are used by law firms and businesses in

general on a regular basis. Indeed, document shredding trucks have unquestionably been

seen outside of this courthouse. It would be unreasonable to conclude that someone in

the courthouse was trying to impermissibly destroy evidence based on the trucks

presence. The same is true here.



Joop Bollen is the lone respondent in a separate petition filed by Jeff Barth: Jeff5Barth personally and in his capacity as sitting County Commissioner for the County ofMinnehaha, South Dakota, and all others similarly situated v. Joop Bollen, 14-mc-125.

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Even assuming, for the pure sake of argument, that the truck was outside of the

law firm for some nefarious purpose, the Hutterville Hutterian Brethren, Inc. v. Jeffrey T.

Sveen case is acknowledged as having nothing to do with this matter. (Doc. 2 at 7

(Attached [as Exhibit C] is a true and correct copy of an excerpt of the litigation

memorandum in re RICO claims from an unrelated case against Mr. Sveen and his Law

Firm.) (emphasis added).) In the end, the so called credible claims actually consist of

one statement in a brief in an unrelated case about a document shredding truck being

seen in public and nothing more.

The only other evidence of the need to perpetuate evidence in this case is the

claim that one of the Respondents stole public documents from Northern State

University when he ended his public employment as Director of the South Dakota

International Business Institute. (Doc. 1 at 4 (citing Exhibit H at 12 in attached

Declaration of Richard Engels).) It was not one of the respondents that took the

documents from Northern State University; it was Joop Bollen. (Doc. 1 at 6.) And there5

is nothing to suggest that any of the actual Respondents in this case had anything to do

with Joop Bollens actions.



A copy of the Records Retention and Destruction Schedule is located at6http://www.sdbor.edu/services/financeadmin/documents/Bd_Regents_Revised_2012.pdf.

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In summary, the two allegations establishing the supposed need for Jeff Barths

require[d] adequate assurance are (1) a statement in a brief on an unrelated matter

about a document shredding truck near several businesses, and (2) the actions of

someone who is not even included as a respondent in this Petition. That is not enough to

establish that the named Respondents in the Petition will lose any evidence in their

control.

While Rule 27 does not place the burden on a respondent to establish that

potential evidence is otherwise secure, policies are in place to protect against the

inadvertent destruction of relevant documents in this matter. See, e.g., Records

Retention and Destruction Schedule, South Dakota Board of Regents. Moreover,6

Respondents have attached affidavits from the Board of Regents (James Shekleton), the

Attorney Generals Office (Roxanne Giedde), Northern State University (John Meyer),

and Mike Rounds confirming the existence of a litigation hold that would cover the

relevant documents in a subsequent Complaint on this matter. (Affidavit of James

Shekleton on behalf of the Board of Regents, Ex. 1 (Litigation Hold Letter from South

Dakota Board of Regents); Affidavit of Roxanne Giedd on behalf of the Attorney

Generals Office, Ex. A (Litigation Hold Letter from Office of Attorney General);



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Affidavit of John Meyer on behalf of Northern State University; and Affidavit of Mike

Rounds.) Finally, the threat of a spoliation instruction also exists under South Dakota

law. See Thyen v. Hubbard Feeds, Inc., 804 N.W.2d 435 (S.D. 2011). When

considering the utter lack of evidence to suggest that the Respondents will lose evidence

under their control, the litigation holds and the threat of an adverse spoilation instruction

are more than enough to protect against the loss of evidence. See PegaSync Tech., Inc. v.

Patros, 2014 WL 2763620, at *3 (E.D. Mich June 18, 2014) (denying Rule 27 petition,

but explaining that since all parties have notice of the potential future dispute, if

[respondents] destroy any relevant evidence, it may constitute spoliation; they are

advised to preserve any relevant evidence).

Jeff Barth also requests that this Court take possession of The File too, regardless

of whether or not Petitioners [sic] eventually get to see such information[.] (Doc. 1 at

4.) Not only are the Courts limited resources better utilized for actual cases and

controversies involving people who have actually sustained an injury in fact, Rule 27

does not establish such a procedure. And the authorities identified in support of this

process, United States v. Reynolds, 345 U.S. 1 (1953), and 50 U.S.C. 1806(f), have

nothing to do with Rule 27.

The Reynolds case stands for the irrelevant proposition that sometimes a judge

should not review certain sensitive documents when the federal government asserts the



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national security privilege in a pending civil case. Reynolds, 345 U.S. at 10 (When this

is the case, the occasion for the privilege is appropriate, and the court should not

jeopardize the security which the privilege is meant to protect by insisting upon an

examination of the evidence, even by the judge alone, in chambers.). And the identified

statute outlines the procedure for determining whether electronic surveillance evidence

has been properly obtained under federal law if a hearing would otherwise harm national

security. See 50 U.S.C. 1806(f) (establishing that the district court shall, . . . if the

Attorney General files an affidavit under oath that disclosure or an adversary hearing

would harm the national security of the United States, review in camera and ex parte . . .

materials relating to the surveillance . . . to determine whether the surveillance . . . was

lawfully authorized and conducted). Simply stated, Rule 27 does not allow for Jeff

Barths proposal. More importantly, there is no need to take possession of anything.

IV. The Petition has not been verified by Jeff Barth.

While the reasons stated above call for the suggested misuse of Rule 27 to be

denied, the Petition is also properly denied on at least one procedural ground as well.

Rule 27(a)(1) specifically states that the person who wants to perpetuate testimony . . .

may file a verified petition[.] Fed. R. Civ. P. 27(a)(1) (emphasis added). Here, however,

the Petition has been signed by Richard Engels. (Doc. 1 at 16.) Richard Engels is not

the petitioner; Jeff Barth is. Fed. R. Civ. P. 27(a)(1) (requiring that the petition must be



23

titled in the petitioners name). Simply stated, if Jeff Barth is the Petitioner, he must

verify the Petition.

CONCLUSION

Jeff Barth should not be permitted to misuse Rule 27 as he is attempting to do.

There is no identified federal cause of action, and he does not have standing to bring a

federal case. Most importantly, there is no danger of evidence being lost by the

Respondents. The Petition should therefore be denied as it pertains to the Respondents

in this Memorandum.

Dated this 20th day of October, 2014.

FULLER & WILLIAMSON, LLP

/s/ William Fuller William FullerEric Preheim7521 S. Louise AvenueSioux Falls, SD 57108Phone:(605) 333-0003Fax: (605) 333-0007Email: [email protected]

[email protected] for Respondents M. Michael Rounds,Robert Tad Perry, Harvey Jewett, JackWarner, James Shekleton, John Meyer,Dr. James Smith, and the Honorable DennisDaugaard in his capacity as Governor of theState of South Dakota


rounds, daugaard et al response

Documents

oojeff barth

september29 petition

complaint petition

earlier petition

respondents memorandum

kes document

harvey jewett iv

robert tad perry