In the Defamation lawsuit Jim Sisney filed back in September 2008, Sisney has filed an emergency motion asking for a stay and protective order. He would like the judge to halt all discovery and put the case on hold until after his criminal trial is finished. His grounds begin with this point:
- Plaintiff Sisney filed this civil action against the Broken Arrow School District and three School Board Members, Flippo, Whelpley, and Wilkins, based on his termination as Superintendent of Broken Arrow Schools. The School Board Members filed a counter claim against Sisney.
Not that it’s a surprise or a shock, but this first point is a lie. No doubt attempting to garner sympathy (remember Lee Sisney’s advice, “Stay the victim”), Sisney pretends he was forced to file this action because he was unfairly and maliciously fired.
He actually filed his lawsuit a month and a half before his termination, so it can’t be “based on his termination”. Not only that, but his list of defendants is wrong. The original complaint was filed against Mike and Narissa Rampey, Douglas Hudkins, and “three unnamed co-conspirators”. The District was not included. In fact, not even the three board members were named initially; Sisney filed this lawsuit as leverage a few weeks before they even requested the special board meeting to vote on his suspension (not termination). But Lee Sisney was wrong when he told his brother, “These people aren’t fighters.” They refused to give in to Sisney’s attempt to intimidate them into glossing over his insubordinate, combative behavior and extending his contract. He was forced to proceed with the lawsuit and name the three board members as the “three unnamed co-conspirators” the day after they requested the special board meeting.
Further grounds, summarized from the Motion:
- Discovery cutoff date in the civil case is November 2, 2012, with pretrial scheduled for November 19, 2012
- Indictments against Sisney for bribery and conspiracy against a school district were unsealed on August 30, 2012, and Sisney’s preliminary hearing is set in October 2012
- Several people involved with the civil case testified before the grand jury on criminal case, including the 3 board members, their attorney, and several witnesses who are on the civil case witness list
Sisney claims in the Motion that since the indictments came out, the defendants have begun a “frenzy of discovery”, inundating him with numerous discovery request documents and demanding a deposition on October 4, 2012. He claims that some of these requests seem to be geared toward the criminal case.
Sisney requests that the judge relieve him of the harassment and undue burden that would be caused by the time and effort required to deal with this civil case at the same time as his criminal case (yes, I am typing this with a straight face), as well as the prejudice that could be caused by his being deposed by the same people who are likely to testify against him in his criminal trial.
On September 25, 2012, the Defendants, now the three board members and the District (added by Sisney after his federal lawsuit was dismissed), filed a response in opposition to Sisney’s motion for stay. Their grounds, summarized:
- It is at the Court’s discretion; however, the burden is on the moving party “to show that there is a pressing need for delay and that the other party will not suffer harm from entry of the stay order”.
- In a typical stay request involving multiple cases, the moving party is the defendant, and there is overlap in the charges in the cases.
- There is little overlap between Sisney’s two cases which could cause prejudice, since the civil case was filed by Sisney against others for defamation and, later, breach of contract, all of which occurred between April 2008 and October 2008. The criminal case, on the other hand, involves events from early 2007 that the board members and District didn’t even know about until after Sisney was fired. The board members and District did not know that Sisney had illegally negotiated and signed the Windstream deal and accepted a free trip to the Final Four as a reward, so they could not have defamed him or wrongly fired him because of them.
- The Scheduling order setting the November 2, 2012 discovery cutoff was entered in April 2012. Both the Plaintiff and the Defendants continue to engage in Discovery, and the Defendants’ requests are reasonable in light of the November deadline.
- The Defendants have not geared their discovery toward the criminal charges, but Sisney has. In his August 2, 2012 subpoena he asked for e-rate information. Nothing involving e-rate was ever mentioned until the August 30, 2012 unsealing of the indictments against Sisney, which brings up at least a few questions: Is Sisney using discovery in his civil case to gain information for his criminal case? And back on August 2, what inspired him to request these documents? Did someone involved in the grand jury tip him off?
- Although courts may grant a stay when there isn’t a strong public interest in resolving the case quickly, there is a strong public interest in getting this case finished, because 1) a stay would prolong this case for an undetermined length of time; 2) the Defendants have been vilified by the Plaintiff for far too long (since September 2008), 3) the School District has an interest in promptly resolving the action against it, especially since prior to being added to this lawsuit, Sisney harassed the District with a baseless lawsuit in US District court. In addition, it’s in the Court’s best interest to dispose of this case, which has been pending for more than four years already.
- It was Sisney who brought the lawsuit, and he shouldn’t be allowed to delay it just because it’s inconvenient or he’s afraid testimony might be used against him in his criminal case. Courts have previously held that a plaintiff can exercise his Fifth Amendment right not to incriminate himself, but he can’t use it to avoid testifying or delay the action. A civil case cited to support this states: “Plaintiffs in this civil action have initiated the action and forced defendants into court. If Plaintiffs had not brought the action, they would not have been called on to testify. Even now, plaintiffs need not testify if they discontinue the action. They have freedom and reasonable choice of action. They cannot use this asserted privilege as both a sword and a shield. Defendants ought not be denied a possible defense because plaintiffs seek to invoke an alleged privilege…nor is the court here willing to hold, that merely by bringing the action plaintiffs have irrevocably waived their privilege, but rules only that to continue to prosecute their action further plaintiffs either must do so; else their action will be dismissed. They have an election.” Which is true. Sisney could dismiss his case without prejudice, and re-file after his criminal case is over.
The defendants’ response does not include as grounds that Sisney totally brought this on himself by being a jerk and a bully, and trying to exploit the courts to threaten people, and that it serves him right that it backfired and is blowing up in his face at the same time he is facing a criminal trial for even more bad behavior.
The judge is set to rule on Friday, September 28, 2012, in time to decide whether Sisney’s October 4 deposition will go forward. If so, we will see if Sisney shows up or tries the “oops, I forgot” ploy again.