# Appendix — Bergmann v. Lee Data Corp.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1644%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 1238

## Text

Supreme Court, U.
FILED “s

931919 may 25 1994

————OEEICE DE THE Cure

LJ

No.

In the

Supreme Court Of The Anited States
October Term 1993

DARYL J. BERGMANN,
Petitioner,

Vv.

LEE DATA CORPORATION, a Minnesota corp.,
now known as Apertus Technologies, Inc.,
ROBERT GORDON, SARAH MacRAE, GARY WHITE,
ROBERT BESINGER and BRIAN KOVALCHUK;
Respondents.

Petition For Review Of Decision Of Court
Of Appeals To The Supreme Court
For The State Of Minnesota

PETITIONER'S APPENDIX
Volume I of I

Daryl J. Bergmann, Pro Se
5025 West 102nd Street
Bloomington, MN 55437
(612) 896-0065

(612) 546-3655

Attorney for Petitioner

a henememnannel

PUBLISHER'S NOTE:

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TABLE OF CONTENTS TO APPENDIX

Page
I oe eS Ai occnsecnedaapentanase snatakaaabnaneanuansenn i
TABLE OF CONTENT ...............cscccssssssssosscocscessressesesscssseees ii
TABLE OF AUTHORITIEG..............:sccscssessscsessesnresessresseeees Vv
OPINIONS SOUGHT TO BE REVIEWED .................::::::200++ l
Minnesota Supreme Court
Order Dated February 24, 1994 ..........ccccseeseseeeseeeeesteeseeseees l
Minnesota Court Of Appeals
Decision Filed December 21, 1993................cccceeeeeeeeeeeeeeeees 2
Order Filed September 1, 1992. ...........ccccseseseseeeeseeseesenneees 5
Minnesota District Court, 4th Dist.
Order and Memorandum
Dated April 1, 1993 ..........:cccsesssseeeseeeenssesssseseeseneneeenecens 7
OTHER OPINIONS IN THE CASE ....0.......:cccceeeeeeeeeseeeeeeees 23
Minnesota Court Of Appeals
Order Filed August 19, 1993 ...........:.ccccccsesesseseesereseseeseneees 23
Order Filed September 25, 1992 ............::cscesssseeeeseeseereeteens 25
Minnesota District Court, 4th Dist.
Amended Order
Filed July 14, 1992...........ccccsessscseseeseseneeseneeeesseeeecnereeneney 27

Order and Memorandum
Dated March 27, 1992...............cccsssscscscssssrrcscssssesesssccsnnes 29

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TABLE OF CONTENTS TO APPENDIX

Page

REFERENCED STATUTES AND PROVISIONS ............... 427
Minnesota Rules Of Civil Procedure ...................cccccccccceeeee 42
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Minnesota General Rules Of Practice For District Courts 46
SE I RAND os covccitissslacnanbasctbéaitinabiaiaSin dh ctdeesasies 46
on, RE SS ke ae 46
Minnesota Rules Of Civil Appellate Procedure.................. 46
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All cases cited by the Respondents support the above
analysis. In Ecklund, an agreement with a term designated as
the lifetime of an employee was not within the Statute of
Frauds. In Tomson, (Rsp.Brf., p. 30), the question was
whether a contract provision requiring "confidentiality for
the rest of the parties lives" put the agreement within the
Statute of Frauds. The court's decision was consistent with
the above case law and Appellant's argument. The agreement
was not within the Statute of Frauds because it was capable
of performance within one year under its own terms.
Kuykendall, (Rsp.Brf., p. 30), is based on similar facts and
the court properly made the same decision.

Respondents go onto argue that Worwa, (Rsp.Brf., p.
31), a case cited by Appellant, has no application to
restrictive covenants. In Worwa, the plaintiff filed a motion
to amend his complaint to allege the existence of an oral
covenant not-to-compete with the defendants for a term of 5
years, within a 2 mile radius, for a price of $30,000. (Worwa
v. Solz_ Enterprises, Inc., 238 N.W.2d 628, (1976), p. 630,
prg. 2.) The court held that, by its own terms the alleged
oral contract could not be performed within one year and that
it was unenforceable under the Statute of Frauds. (Worwa,
Id., p. 631, 3rd prg.)

Clearly the provisions of the Settlement Agreement draft
designating a definite term beyond one-year put it decisively
within the Statute of Frauds as a matter of law.

Last on this point, Respondents argue that the settlement
document does not come within, Minn.Stat., Sec. 336.8-
319, which deals with the sale of securities. Respondents allege
that the document's prg. 2, which would require the transfer
of Appellant's Lee Data stock for consideration, is not a "sale"
under 336.8-319. Minn.Stat., Sec. 336.1-201(32), included
as part of Article 8 pursuant to Minn.Stat., Sec. 336.8-
102(6), defines a securities sale purchase as any “transaction

67

creating an interest" in such property. The settlement draft
purmorts to transfer an interest in Appellant's stock, which
would clearly be a "sale" of securities within Minn.Stat., Sec.
336.8-319. An application of this is shown in Ryan v. Ryan,
193 N.W.2d 295, cited in Rsp.MacRae'sBrf., pg. 9. The
parties recognized the settlement agreement transfer of
stock as a "private placement” sale.

The settlement draft is not enforceable against Appellant
because, even if a signed agreement had been made, the
form does not specify the quantity of stock to be sold.
Minn.Stat., Sec. 336.8-319(a), requires a signed writing
"sufficient to indicate that a contract has been made for sale of
a stated quantity of described securities at a defined or
stated price". It is essential that the quantitiy be stated.
Clearly the quantity is not stated, and the statute requirements
are not met.

3. Whether The Settlement Agreement Form Meets The
Requirements Of The Statute Of Frauds.

The Respondents argue that Appellant's attorney gave
his “approval” to the Settlement Agreement form, (see
Rsp.Brf., p. 32, Ftnt. 15, alleging that

"Mr. Bergmann's agent gave his approval to the settlement,
both orally and in writing"). Respondents then argue that Mr.
Greenberg's notation of "approval" operated as a
memorialization of “acceptance” of the document. Mr.
Greenberg's notation, as he confirmed in his affidavit nearly
one year later, (AGG.Aff., Id. pg. 2, prg. 8), was his
manifestation of "review", but not an "approval" and certainly
not an “acceptance”. An “approval” is merely the act of
confirming some act done by another, it is not an
acceptance, (Black's Law Dictionary, Roonev_v. South Sioux
City, 111 Neb. 1, 195 N.W. 474, 475).

68

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In this case, Mr. Ginsburg drafted the Settlement
Agreement document as Respondents’ counteroffer,
(Gins.Aff., Id.), to Appellant. He then gave the document to
Mr. Greenberg who, seeing it for the first time, reviewed it
for Appellant's acceptance, which he said he could not obtain
until October 18, 1991. On October 14, 1991, Appellant
revoked any authority that Mr. Greenberg may have had to
negotiate a settlement agreement, by meeting with him
personally to limit his authority, and by delivering Appellant's
letter of the same date to document that instruction, (see RA-
160).

"Signing", or "subscribing" to an acceptance, as the
Statute of Frauds requires, may be indicated in different ways,
as long as there is a clear manifestation of acceptance.
Here, the document in question required a carefully
defined method for “subscribing” to an acceptance.
Paragraphs 5, 7, and 10 express the requirement that
Appellant personally sign the document to execute it. The
signature lines confirm the express terms. Respondents
drafted the document and any inconsistency or ambiguity must
be construed against them, but it is clear that Appellant's
personal signature was required by the documents express
terms. The notation of Mr. Greenberg cannot operate as a
memorial of acceptance as a matter of law. The cases cited by
Respondents do not change this. In Beach there was a clear
and undisputed “acceptance” on the record. There is no
indication that Beach or BA Leasing involve a Statute of
Frauds issue. (Rspdts.Brf., p. 33.)

The Respondents argue that parol evidence is admissible
to "explain the circumstances surrounding and leading up to
the agreement". Parol evidence is admissible to explain a
particular term or condition, not to prove the existence of an
agreement, not to change a term, not to add a term, and not to
delete a term. None of the cases cited by Respondents

change the rule. MacDonald and Greer, (Rsp.Brf., p. 34),
69

confirm Apl's. position. In Clark, (Rsp.Brf., p. 34), the court
considered the rule that proceedings of a public body may not
be impeached or contradicted by parol evidence because the
dependability of the substance of the records must be insured,
(Clarx, p. 562-563). Clark has absolutely nothing to do
with, the applicability of parol evidence to a contract.

Respondents quote the Trial Court in arguing that, if Mr.
Greenberg had authority to enter into an oral agreement,
a settlement was "“perfected...before anything had been
reduced to writing", and lack of assent to the written document
by Appellant was therefore "immaterial". (A-419, Rsp.Brf., p.
35.) That is illogical in view of the terms of the alleged oral
agreement, and in light of the Statute of Frauds. According to
Respondents and the Trial Court, the alleged oral terms were
identical to the document terms. (That has to be so asa
matter of law.) Since the alleged oral contract put it within the
Statute of Frauds, an oral agreement could not "perfect"
a settlement agreement. Similarly, since the alleged oral
terms _ required Appellant's personal assent, an _ oral
agreement could not have _ been “perfected" without it.
Nor does it make any difference whether Mr. Greenberg
had express, implied, apparent or no authority, since he chose
not to exercise any authority he may have had.

Respondents argue that in Upton Mill & Elevator Co.,
"there was no writing, notation or signature of any kind...".
In that case the court recognized the typed company name
as a signature, the form was completed by its employee, but
final acceptance by an officer was required by the order form
terms. The Upton case is on point.

Dataserve_ Equip., Rural American Bk., and the other
contract cases cited by Appellant are all relevant for the

purpose of explaining the meaning of a “signature” and
"acceptance within the terms of a document". Dataserve is
squarely on point. Respondents argue that Rural American

70

Bk. is not relevant because it deals with credit agreements.

Austin Farm Equip., relied on heavily by Respondents, also
deals with credit agreements.

Last on this question, the Respondents have chosen not to
recognize the meaning of the document's paragraph 7,
regarding modifications, (Rsp.Brf., p. 36). Respondents
drafted the clause. The paragraph precisely provides the
requirements for executing the related "Stipulation For
Dismissal", which was not prepared in the manner prescribed,
and is also controlling as to how the document's signature
and acceptance provisions must be modified. The
document's terms did not allow an acceptance by Mr.
Greenberg. To allow his acceptance required a modification in
accordance with paragraph 7. Respondents admit that the
document terms were not modified, (Rsp.Brf., p. 36, |. 7-9),
therefore, the "Stipulation For Dismissal" is ineffective, and
the notation by Mr. Greenberg cannot operate as an acceptance
under paragraph 7.

‘PAGES 24 TO 25)

E. Whether The Trial Court Properly Dismissed The Case
Based On Three Independent Reasons.

Since a contract enforceable against the Appellant was not
formed, the dismissal is invalid. The dismissal is also invalid
under paragraph 7 of the written document which the Trial
Court specifically enforced because it required the
individual parties to personally sign that undertaking.

The Trial Court's finding that the case could have been
dismissed for noncompliance with its ordered sanctions is
inconsistent with the Statute of Frauds and the courts
findings that an oral agreement was formed releasing
sanctions, the parties prior understanding that sanctions
were not required to be paid until after Appellant's
completion of the deposition of Ms. MacRae, (which to this
date has not been completed), and Appellant's right to a
hearing as to attorney misconduct.

F. Whether Appellant Presented Evidence To Support His
Claim Of Attorney Misconduct.

Appellant was denied his right to a hearing on these issues,
and he did provide uncontested evidence of misconduct
by Respondents’ attorneys. (See Pilts.Memo.Aff. in
response to Defs.Mot.Strk., A-141, Vol. Il, esp: pages A-
190 to A-196, concerning violations of the court's
Protective Order; pages A-187 to A-190, conceming the "White
Notes"; pages A-149 to A-157 and A-168 to A-187,
concerning misrepresentation.) | Appellant was denied his
right to compel Respondents’ counsel's appearance at a
hearing on these facts, and he was denied his right to compel
their appearance on his Show Cause Order Application.

72

PETITIONER'S APPELLATE BRIEF
DATED AUGUST 30, 1993

[PAGES 45 TO 48}

Ill. Whether the October 1, 1991 dismissal of the case
should be vacated and Appellant granted special relief in the
interests of justice due to attorney misconduct, an abuse of
discretion by the Trial Court, and the appearance of judicial
misconduct?

Argument.

Attorney misconduct and judicial prejudice is apparent in
this case. Appellant's documentation of Respondents attorneys’
misconduct is provided by was of Appellant's, "Plaintiff's
Response To Defendants’ Motion To Stike", (App.Vol. IL,
beginning at A-141; also see Apls.Mot., Nov. 27, 1991 with
Apls.Aff., Jan. 10, 1992 and Apls.Supp.Aff., Jan. 13, 1992).
Appellant renewed his request for Trial Court action as to
attomey misconduct for the fourth time by serving his
Application For Order To Show Cause on the Trial Court
November 26, 1992. (An acknowledgment of service of the
Aplication was provide by the Trial Court office on that
date.) The Application further supports allegations of
misconduct and it is included with the Appendix beginning at
page A-363, Volume III.

The Trial Court refused to review Respondents attorneys’
misconduct on all four motions. Clear evidence of
prejudicial misconduct is documented byAppellant's
memoranda and affidavits, (Id.). At the hearing held January
14,1992, the Trial Court cut off Appellant's offer of
evidence including the introduction of the acknowledged tape
recorded statement of Appellant's attomey, (Trscrpt., at A-
124), which contained information in conflict with the
unswom statements that Mr. Greenberg made at the
73

hearing pursuant to a question raised by the Trial Court. At
that hearing the Trial Court made its bias clear when Appellant
was told that his allegations of bribery and misconduct
were merely allegations of what good attorneys do, and that is
the way the American system of justice operates, (see A-
460 to A,-463). Appellant is entitled to review of his
motions and applications concerning prejudicial misconduct
in this case: "When disobedience of an order of court is
shown, [Respondents' counsel's violation of the Protective
Order], a prima facie case of contempt is made, and the
burden is then on the person charged with contempt to show
that it was not in his powei to obey." (Meisner v. Meisner,
(1926), 220 Minn 559, 20 NW2d 486; US. v._ Rylander,
(1983), 460 US 752.)

If the dismissal is set aside and Appellant is allowed his
discovery and a trial, the Appellant will show that
Respondents attorney Mr. Ginsburg and Appellant's own
attorney Mr. Greenberg colluded to impune Appellant's
character and conduct by way of their misrepresentations,
2nd = material omissions), before the Trial Court, (see Apls.
‘viotions, Responsive Papers, Application and Affidavits,
Id.). The Trial Court's resulting oppressive sanctions were
tatended to force Appellant to quit the case, or to bring about
an involuntary dismissal. Appellant will show that those
attorneys colluded to achieve the same result by other means.

Appellant will show that Mr. Ginsburg, with the
assistance of Mr. Greenberg, bribed two witnesses whose
depositions, taken by design in the presence of Appellant,
contained manufactured misrepresentations that were
intended to cause Appellant to have an emotional breakdown
and give up his case against his will. The witnesses who
testified falsely, are Diane Hanson, against whom Appellant
has obtained a District Court judgment for her part in Mr.
Ginsburg's strategy, and Appellant's own psychologist,
Mindy Mitnick. Appellant will show that Ms. Mitnick

74

knew Appellant's weaknesses and vulnerablities and that she
exploited that information with the intent to cause
Appellant's emotional breakdown in exchange for a bribe.

A stipulation for settlement may be set aside or avoided upon
a showing that one of the parties was fraudulently induced
to enter into the agreement, (Keller v. Wolf, (1953), 239
Minn. 397, 58 NW2d 891; Wilson's Inc v. Twin City Frieght
Inc., (Minn.Ct.App. 1985), 378 NW2d = 117).
Misrepresentation as to the validity of a claim would also
defeat a compromise, Vv
(1956), 247 Minn. 88, 76 NW2d 492). Misrepresentations
will defeat a compromise even though they are made in good
faith and not witha design to deceive or defraud, (Becker v.
Messner, (1928), 175 Minn. 471, 221 NW 724). A
compromise may be attacked collaterally on the ground that it
was unauthorized and fraudulently entered into by an
attorney, (Albert _v. Edgewater Beach Bldg. Corp., (1944),
218 Minn. 20, 15 NW2d 460. Where there is a dispute as to
whether a settlement was reached, it is ordinarily for the trial
court to determine what the facts are and the matter is
appropriate for the jury to consider, (Jallen, Id.; Mullin v.
Minkel, (1929), 177 Minn. 42, 224 NW 255). Where
through fraud, mistake, undue influence, or duress, either offer
Or acceptance is not the genuine contractual consent of a
party, the law allows him to avoid the contract, (State v.
Bucholz, (1926), 169 Minn. 226, 210NW 1006).

Here, the actions by Mr. Ginsburg, and others wrongfully
influenced by him, caused a “duress”. (See Wise v. Midtown
Motors, (1950), 231 Minn. 46, 42 NW2d 404.) Both the
duress and the provoking misrepresentations and misconduct
by counsel compel vacating the dismissal, allowing
Appellant's discovery and a trial on the facts and issues.

md eee ee

PETITIONER'S MEMORANDUM AND AFFIDAVIT IN
RESPONSE TO DEFENDANTS’ MOTION TO STRIKE
DATED NOVEMBER 19, 1992

[PAGES 9 TO 17)
II. MISREPRESENTATION AND PERJURY

A. Misrepresentations Contained In Dorsey & Whitney's
Papers Served August 19, 1992 And Related To Unlawful
Disclosure Of Plaintffs Confidential Records, And Case
Records, For Purposes Of Bribery And Fabrication Of False
Testimony.

Dorsey & Whitney's papers served August 19, 1992 and
supplemented with Ginsburg's signed affidavit served
September 4, 1992 contain material inconsistencies and

Maki represents under her signature that Defendants
provided my confidential records to Diane Hanson in
compliance with Hanson's subpoena, on or before August
26, 1992, one month prior to Ginsburg's taking of
Hanson's deposition. (See Gins.Aff., Exh 1, the “Hanson”
subpoena.) Maki falsely states that Hanson's attorney did not
“rescind” that subpoena, (Defs.Memo., p. 6, |. 7), and that she
would have been subject to the contempt powers of the court
for not complying, (Defs.Memo., p. 6, Is. 7-9). Maki falsely
states that Ginsburg notified me of his intention to comply
with Hanson's subpoena by letter dated August 20, 1991,
(see Gins.Ltr. at Gins.Aff., Exh 2). (Generally see Maki's
representations at Defs.Memo., pps. 5-7.)

Maki's recollection and contention as to the time of the
disclosure of my confidential records on or before August 26,
1991 is accurate. As I have previously pointed out to the
court, Hanson had knowledge of my confidential records in

76

order to fabricate her false testimony. By illegally providing
that information to Hanson in advance of her deposition, and by
other means, Maki and Ginsburg helped Hanson prepare her
she could not legally have obtained at that time and which she
intended to use to maliciously defame and harm me. (See
Bergmann _v. Hanson Dist.Crt. case file number: CT-91-12540,
the record of that case is incorporated herein by reference; and
see resulting Order, EXH. F.) Giving sensitive, confidential
medical records, to a witness who was known to
Dorsey's attomeys to have a malicious retaliatory
predisposition toward me, was outrageously irresponsible, but
it served their purpose in skillfully creating false testimony
and threatening a further criminal defamation of me.

Maki's contention that the disclosure was legally made
pursuant to Hanson's subpoena is wholly false.

In connection with their disclosure of confidential medical
and other case records, and to cover up their wrongful conduct,
Ginsburg and Maki made further misrepresentations to the
Court by way of their “Memorandum In Support Of
Motion To Strike", signed by Maki, ("Defs.Memo.”); a
signed revised "Supplemental Affidavit Of Roy
A.Ginsburg", ("Gins.Aff.") in support of that Memorandum:
and a conflicting unsigned "Supplemental Affidavit Of Roy
A. Ginsburg". Those misrepresentations firmly and factually
establish the deceitful tactics of Ginsburg and Maki.

Ginsburg and Maki made amisrepresentation to the
Court in stating that the, “Defendants and their attorneys
complied with the discovery rules in producing", my
confidential medical records. (Ref. at Defs.Memo., p. 5, Is.
16-20; and note that Defs. have never denied providing
those records.) The subpoena fails to comply with the rules for
discovery because it was not served in connection with a duly
noted deposition as required by Minnesota Rules of

77

is
7 LAM ee SE
a oe

Civil Procedure, ("MRCP"), Rule 45.01. That rule
specifically states that a violation of it, “constitutes an_abuse of
process and shall subject the attorney or party to appropriate
sanctions or damages". Ginsburg knew of that rule, and he
knew of the impropriety of the subpoena because he had
reviewed my advance written notice. (See Gins.Aff., Exh. 3,
prgs. 1, 3.) The subpoena also failed to provided me with
adequate time to respond, (2 days), to move to quash.
Ginsburg was aware of that impropriety and he was aware of
my intention to file a motion to quash. (See Gins.Aff., Exh. 3,
prg. I, Is. 12-15.)

Maki and Ginsburg misrepresented to the Court that
they, “notified [plaintiff] in writing that [defendants] intended
to comply with the subpoena unless [plaintiff] moved to
quash the subpoena before the return date". (See Defs.Memo.,
p. 5, ls. 20-23, and p. 6, Is. 1-3; see ref. Gins.Aff., Exh.2; see
Gins.Aff. p. 2, prg. 5.) _Defense counsel did not notify
me. Their Exhibit 2 is addressed to Alan Greenberg, an
attorney who appeared in this matter, but not my attorney in
the mam" pursuant to which the subpoena was issued. I was
represented in the Hanson matter by Larry A. Celander, who
was counsel of record in that case, and pro se in association
with Celander, subsequent to his illness and my notice served
on the parties and for filing of record with the Court on July
19, 1991. My letter of August 22, 1991, gave full notice to
Ginsburg of my pio _ se representation. Further,
Greenberg never notified me of Ginsbyrg's letter of August
20, 1991. (The fact that Greenberg did not notify me
of Ginsburg's letter is indicative of collusion.)

Ginsburg and Maki lied to the Court when they represented
that Mr. Theodotou did not, “voluntarily rescind the
subpoena", and that “defendants were subject to the
contempt powers of the court if they did not comply with the
subpoena". (See Defs.Memo., p. 6, Is. 4-12; unsigned
Gins.Aff., p. 3, prg. 6; and compare signed Gins.Aff., p. 3.) I

78

sent my letter dated August 22, 1991, (Gins.Aff., Exh. 3.), by
U.S. Mail on the morning of August 22 by depositing it at the
downtown post office in order to assure its delivery in advance
of the production date. Theodotou received and acted on my
letter by August 24, 1991, when he acknowledged to me
verbally thathe would not enforce the subpoena, and that he
had so advised Ginsburg. Theodotou confirmed his
rescission ofthe subpoena in writing. (See Theo.Ltr.,
Aug. 26, 1991, EXH. G.) Following Theodotou's rescission
of the subpoena, I was not notified of any later subpoena in
connection with any case or matter, or any related notice of
deposition, or other production date.

Despite Theodotou's instruction to Ginsburg and assurances
to me, I did not trust Ginsburg to refrain from providing the
records. I expected that Ginsburg would use the guise of the
subpoena to provide Hanson with my confidential medical
records for the purpose of fabricating false testimony. In
an attempt to prevent such unscrupulous deceitful conduct by
Ginsburg, I sent my legal counsel, Larry Celander, to appear at
the place designated for the production, at the time and
date appointed. Pursuant to Celander’s affidavit, no one
was present at the designated place and time of the
production. (See Celdr.Aff, EXH. H.) The fact that
Ginsburg and Theodotou were not present at the place and
time designated for the production confirmed that Theodotou
had effectively notified Ginsburg of the rescission of the
subpoena. So, to accomplish their deceitful purposes to
violate the Protective Order, bribe Hanson, and prepare
her manufactured testimony, Ginsburg and Maki sent my
confidential medical records and all other information
related to the suit directly to Hanson, or Theodotou, or both
of them, completely outside of the subpoena process and in total

disregard for it.

Ginsburg's amended signed Supplemental Affidavit contains
materially false and inconsistent representations concerning
79

the events surrounding the disclosure of my confidential
records. First, Ginsburg truthfully confirmed that he received
Has non's subpoena of August 8, 1991. (See Gins.Aff., p. 2,
prg. 3 ref. to Exh 1; and, p. 2, prg. 4, describing the
subpoenas requirements.) Next, Ginsburg confirmed that he
complied with that subpoena which required that document
production on August 26, 1991. Gins.Aff., p. 2, prg. 5,
confirms that, and his_ recollection as to the time of that
disclosure is consistent with Meiu’s and with my
statement. Gins.Aff., p. 2-3, prgs. 5-6, suggensts that I could
have prevented that disclosure by serving a Notice of Motion
and Motion, and that Ginsburg produced the documents even
though he new of the improprieties associated with the
subpoena and despite the established fact that Theodotou
told him not to produce the information. Ginsburg was
copletely aware of my objections to the Hanson subpoena and
the improprieties associated with it before providing the
documents. That is apparent by his reference to my letter
to Theodotou dated August 22, 1991, (Gins.Aff., p. 2, prg. 3),
and by his confirmation of his knowledge that I informally
contacted the attorney who served the subpoena, (Gins.Aff.,
p. 3, prg. 6, and ref. to Exh 3). The production was illegal and
contemptuous. Even though the subpoena did not follow legal
procedure and had been rescinded, Ginsburg obviously had his
own purposes in mind when he provided Hanson with the
information and confidential records to facilitate his
fabrication of her perjured testimony.

Gins.Aff., p. 3, prg. 6 attempts to justify his _ illegal
disclosure _ by stating that a later subpoena from the
Department of Jobs andTraining, ("DJT"), requested the
identical information. The existence of a later subpoena
certainly does not justify his initial illegai acts. The crucial
distinction is that the DJT subpoena was requested by
Theodotou after Hanson's perjured testimony was prepared
and taken by Ginsburg. (See Theo.Ltr. dated Oct. 7, 1991,
EXH. I.)

80

Within the DJT rules and informal procedures, I moved to
quash Theodotou's request for the DJT subpoena. (See
Berg.Ltr., misdated Oct. 25, 1991 but noting it had been sent
Oct. 9, 1991, EXH. J.) | Ginsburg's statement that he
confirmed with Theodotou that I had not taken action to quash
the subpoena is a lie, (see Gins.Aff., p. 3, prg. 6, Is. 19-21), as
the court can plainly see from my letter, EXH. J.

Ginsburg's representation that he would be in violation
of the DJT subpoena and a court order if he did not produce
the documents to Theodotou, (ie: The same documents he
previously and illegally disclosed to Hanson), is another
lie. Ginsburg stated that he was compelled to obey the
subpoena, but the true facts show that he willfully disregarded
its requirements when it wasreissued on November 14, 1991.
(See the affidavit of Samuel B. Fried, Director of the
Appellate Office, Minnesota Department of Jobs and
Training, Frd.Aff., EXH. K.) Ginsburg did not produce the
documents and appear at the noticed hearing sit
specifically required, (see Gins.Aff., Exh 4, pg. 2, Is. 1, 5-9).
Since the DJT does not have a requirement to notice the
deposition of a custodian of records, as required by MRCP,
Rule 45.01, their rules require the custodian to appear at a
hearing so that a questionable production can be challenged
at that time. Ginsburg claims he was not required to go to
the hearing because he thought Hanson's company went
bankrupt in between the time he received the subpoena by
mail, (sometime after October 8, 1991), and the hearing date
scheduled a few days later and stated on the subpoena, (October
16, 1991). (See Gins.Aff., p. 4, prg. 6, Is. 2-7; and Exh 4, p.
2.) That representation is an absolute lie. Neither Hanson's
companies nor Hanson filed bankruptcy, there is no record of
such a claim in connection with the DJT proceedings, and the
issue of a bankruptcy is wholly irrelevant in connection
with such proceedings anyway. (See Frd.Aff., EXH. K.)
Ginsburg willfully and wrongfully produced the documents to

81

a it

Theodotou, and he was ordered to appear at the hearing. The
hearing did go forward, Hanson did appear by representation,
and Ginsburg did not appear, all of which is documented
by the DJT Determination and Findings. (See the Department
Of Jobs And Training, “Notice Of Findings Of Fact And
Decision", dated December 2, 1991, EXH.L; also see the
Frd.Aff., EXH. K.) If Ginsburg truly felt he would have
been in violation of a court order had he not complied with the
DJT subpoena, then he would have appeared at the hearing just
as the subpoena and the DJT rules clearly require. Again, it is
obvious that Ginsburg had only his own unlawful purposes in
mind when producing documents to Hanson and he did so in
total disregard of proper subpoena procedure.

Even if the DJT subpoena had been appropriate, it did
not cover up Ginsburg's prior unlawful disclosure to Hanson.

Further, even if Ginsburg had been required to comply
with both subpoena productions, the disclosure of my
confidential medical _ records was unauthorized and
unlawful in violation of a Protective Order, Confidentiality
Agreement, and release authorization forms. Those
confidential records were privileged and were not requested,
but were specifically excluded by both subpoena documents.
(See Gins.Aff., p. 3, Is. 18-19; Gins.Aff., Exhs. 1,4; and,
discussion at Part III., "Violation Of Protective Order".)

The remainder of the Gins.Aff. is redundant misre-
presentation.

82

[PAGES 47 TO 63}

D. White Notes.

In response to discovery requests, the Defendants and
their counsel identified and produced copies of certain
handwritten Investigation Notes that were taken
contemporaneously during the so-called investigation of he
MacRae charge. At the deposition of Gary White taken by
my legal counsel on December 12, 1990, Mr. White
inadvertently identified certain other notes he had made
several weeks after his interviews and which summarized his
alleged investigation of charges against me and supposedly
supporting such charge. (See White Depo., EXH. B, p. 13,
ls. 7-10.) Those notes, referred to herein as the _Summary
Notes, were prepared and typed after the investigation
and purported to be a summary of it. The_Summary_ Notes
were not identified or produced by Defendants or their counsel,
even though they were aware of them at the time of their
response to my discovery requests. (ie: See Defs.Rsps., EXH.
M, p. 14, Is. 1-4, showing their response to Pit.Intrg., EXH.
M, p. 8, prg. 22.) When White identified the Summary
Notes he was sternly reprimanded by his counsel, Maki.
Maki said White had been specifically instructed not to
mention or discuss those documents. (See White Depo., EXH.
B, p. 13, Is. 16-20, and 11-12; p. 14, Is. 11-13; p. 15, Is.
13-16.)

The significance of the Summary Notes and a complete
unedited set of the Investigation Notes is that by examining them
together, Defendants' fraud in accusing me of sexual
harassment and in terminating me will be apparent. That is
because White included false and exaggerated allegations
against me in the Summary Notes that are not supported by the
handwritten Investigation Notes, and which can be proven
false. White created the falsified Summary Notes weeks

83

after the investigation for the purpose of fraudulently
documenting his opinion of sexual harassment.

The Plaintiffs Interrogatories To Defendant Lee Data
Corporation, attached with EXH. M, specifically required a
disclosure of the identity of both the Investigation Notes and
the Summary Notes. When responding to the discovery
requests in this case and in the initial case, Maki failed to
identify the White Summary Notes as required by definitional
instruction number 7, and interrogatory number 22, and
failed to produce them as required by statement and document
production requests.

It is ciear from Defendants’ and Maki's Geliberate
concealment in response to the discovery requests, and Maki’'s
reprimand of White during his deposition, that Defendants
and Maki were aware of the existence, identity and content
of the Summary _ Notes prior to White's inadvertent disclosure at
his deposition. Maki was therefore required to disclose the
identity of those notes and produce them in response to my
interrogatories and request for statements and documents.
Defendants' and Maki's failure to identify the existence of
the documents in accordance with discovery requests was a
willful concealment of material information; a MRCP, Rule 11
violation by Maki; as well as misrepresentation and
perjury. Since the documents would reveal my innocents,
the initial criminal fraud perpetrated by the Defendants
against me, and now onthe Court, Maki and Ginsburg have
a professional obligation to produce the documents. (See
MRPC, Rules 1.2(c), 3.3, 3.4, 1.13(a), etc.)

The Summary Notes, and an unedited set of the
Investigation Notes, are material to the litigation and are my

only means of gaining that discovery information because of
the unusual and significant lapse of memory of the
Defendants. None of the Defendants or any of the witnesses
seem to remember any details of the alleged charges against

84

ge oa NaN Sie aso TR a a kg ee Na al ar eta te LM cata SE! de hv te ot fe ae ES Sf he SS Sas Bie ha Ne ie

me or any reason why the allegations were presumed to be
a sexual harassment.

The Summary Notes are also material because White was the
only person to conducted the investigation of the charges
against me, and he did it pursuant to Dorsey &
Whitney's instructions. (See Defs.Memo., dated Oct. 10,
1989, p. 5, prg. 2.) Those Notes will show that White
documented his own false statements, pursuant to Dorsey's
instructions, to substantiate his allegation of sexual harassment
and used those Notes to document managementsact in
terminating me. The fact that the Summary Notes contain
false statements can be conclusively shown by comparing them
with the = Investigation Notes. made contemporaneously
during interviews with MacRae, and with MacRae's
deposition. The Investigation Notes documenting statements
made by MacRae, do not substantiate the false statements
documented by White and Dorsey in the Summary Notes.

Maki's _misrepresentation and perjury in connection
with the Summary Notes was willfully and maliciously
intended to conceal material information that would prove my
innocents of the allegations of sexual harassment that were
made against me. Attorneys have a legal and moral
obligation to come forward with such information. Dorsey's
attorneys concealed the Summary Notes and blocked my

discovery of the Investigation Notes which were
wrongfully excluded by Judge Sommerville who did not

compare them to the Summary Notes. (The Defendants’
probably did not produce the Summary Notes to Judge
Sommerville for the in camera review that he ordered.)
Such a comparison would prove the fraud and pattem of
criminal conduct by the Defendants and their attorneys.

85

Ill. VIOLATIONS OF PROTECTIVE ORDER.

During the pendency of my Initial Action against Lee
Data Corporation, served Deceriber 19, 1988, court file
number CT-89-663, the Defendants proposed and drafted
a Protective Order. (See Protective Order, EXH. V.) I!
agreed to the draft order and its submission to the Court
for signing. The Honorable Robert K. Levy signed the Order
February 6, 1989, and the Order was properly served by the
Defendants on all parties.

At my _ deposition taken by Defendants’ counsel,
Ginsburg, on March 22, 1990, all parties agreed to and
ratified their acknowledged applicability of the Order to
the present action. (See Berg.Depo., EXH. W, p. 149, ls. 4-
15.) Both Ginsburg and Steinberg expressly agreed, pursuant
to Greenberg's statement, that information provided to them
by me would be protected by that Order. The agreement
and renewed acknowledgment of the Order was promried by
Defendants' request for my "Authorization For Release Of
Medical Information", including my medical records
maintained by Mindy Mitnick. (See “Autliorization For
Release Of Medical Information", prepared by Dorsey &
Whitney for Mindy Mitnick, EXH. X.)

The Authorization, Exhibit X, expressly limits the
purpose of the disclosure by Mitnick, and the use of the
information by Dorsey & Whitney. Use of the information
was limited to the "Litigation" as of May 29, 1990, and no
other later litigation or other purpose. The authorization
expressly prohibits Dorsey & Whitney, or Mitnick, from
disclosing those medical records, “to atiy other or third
party”. The Authorization reserves the Plaintiff's
unconditional mght to revoke his consent at any time. That
consent is hereby revoked.

Prior to my deposition of March 22, 1990, I instructed
Greenberg to obtain or renew the Protective Order, and to
specifically state on the record that all of my medical
information _is confidential. When Greenberg failed to
specifically refer to my medical records, I clearly
established the absolute confidential nature of those records
myself. (See Berg.Depo., EXH. W, p. 153, Is. 8-13.

Ginsburg and Maki, willfully violated the Protective
Order on at least two occasions, and with malicious intent.

Ginsburg violated the Order when he provided my
confidential records and medical records to his witness
Hanson and her counsel, Theodotou. (See Defendants'
admissions at Defs.Memo., p. 5, Is. 16-17, stating that,
“Defendants and their attorneys" produced those documents,
specifically referring to the Plaintiffs medical records
identified at the preceding Is. 11-13 of the same page; and, the
unsigned Gins.Aff., p. 2, Is. 12-28. Also, ref. Plts.Aff., Jan.
13, 1992, p. 10, prg. 6g; Plts.Ltr., Nov. 27, 1991, Secs.
3, 4; and, Plits.Memo.Aff., Aug. 4, 1992, p. 3, ls. 20-26.)
That disclosure was made without notice to me, (see
discussion at Part II. A. above), and before the deposition of
any medical witness.

When Ginsburg violated the Order and the Authorizations
by providing my confidential medical records to Hanson and
Theodotou, he was on notice of Hanson's malicious
intention to cause harm to me. (See Hans.Depo., EXH. Y,
pps. 35-37, esp. p. 37, Is. 8-10, wherein Ginsburg
specifically refers to that portion of my action against Hanson
which describes her threats of violence against me and my
family. My action against Hanson is incorporated by
reference to Bergmann v. Hanson, et al, District Court File
No: CT-91-12540.) Hanson's malicious, violent, defaming
Statements and threats against me are thoroughly documented
by my Motion for Summary Judgment, Memorandum and

87

Affidavit in that case. (Ref. the Complaint, File CT-91-
12540, p. 5, prg. 27; p. 9, pres. 55, 56, and 59;
Pits.Memo., p. 13, prg.D to p. 20,1. 7; and Pits.Aff. with ref.
Exhs., p. 12-22.) Ginsburg also knew that Hanson intended to
use my confidential medical records against me. (See
Pits.Memo.Aff., August 4, 1992, p. 3, Is. 20-22; also
implied by Gins. knowledge of the lawsuit and its
allegations.) My confidential medical records, in Ginsburg's
possession, had value to Hanson for her malicious
purposes, and to use in her defense against me. The
disclosure of the records to Hanson constituted a bribe for
that reason.

In disclosing my confidential medical records to Hanson
on August 26, 1992, as Ginsburg has admitted, (see prior
refs. above), he deliberately helped Hanson manufacture
the false testimony provided by her deposition which
Ginsburg noticed and took on September 26, 1991. By
providing Hanson with my confidential medical records,
without telling Mitnick, Ginsburg was able to obtain
Hanson's manufactured testimony based on Mitnick's
confidential evaluation. Ginsburg was then able to provide
Hanson's fabricated statement to Mitnick, probably without
Mitnick's knowledge that it had been based on her
confidential evaluation, with the effect of causing Mitnick to
change her evaluation, making Hanson's false statements seem
believable, and “dovetailing" Hanson's false testimony with
Mitnick's. Such a practice is reprehensible, and is a fraud
against me and on the Court.

When assisting Hanson in manufacturing her false
testimony about me, Ginsburg and Maki had a knowledge and
understanding of my medical records and emotional
vulnerability to false accusations. They knew the
manufactured testimony would cause suicidal distress, based on
Mitnick's untainted evaluation and notes and their personal
knowledge of other facts in the case, and that the implied threat

88

of bringing false accusations before the Court would
intimidate and coerce me in their attempt to force a dismissal
of the case.

Previously, during the pendency of the Initial Action,
Defense counsel, Ginsburg and Maki, violated the Protective
Order by making an unauthorized secret disclosure to the
Lawyers Board of Professional Responsibility of my thirty
four page "Confidential" letter dated September 2, 1988,
addressed to the Defendant Robert Besinger. (See EXH. ys
Berg.Ltr. to Greenberg, copying the Lawyers Board investigator
Eliz.Sipe, dated June 2, 1989; and, copy of selected pages of
the Confidential Letter, EXH. Z, p. 100650, 100681.) The
unauthorized disclosure of the Letter was a willful and
calculated deception in disregard for my right to confidence
and was designed to maliciously harm me. .

The Confidential Letter is my original authorship, it was
written by me and delivered by messenger to the Defendant
Mr. Besinger on September 3, 1988. The Letter was
marked "Confidential" at the time it was delivered to
Besinger. Besinger read the Letter, telephoned me to discuss
it, promised not to make copies of it, promised to maintain
its contents in "Confidence", and retumed the only original
copy of the Letter to me in a sealed envelope.

At a hearing attended by me and held before the
Honorable Judge Roberta Levy on March 22, 1989, Maki
claimed that my attorney had not produced a copy of the
Letter in response to her discovery request. Albright replied
by stating that he had already produced a copy and
simultaneously handed Maki another copy of the Letter. The
Letter was not read or disclosed at the hearing in any way. The
Letter was not entered into evidence or shown to Judge Levy, or
anyone else in the court room. There wer: a0 spectators in
the court room.The Letter was not submitted as an exhibit
Or aS a separate paper to the Court. The Letter was not filed

with the Court. No record was taken of the hearing, and no
record was made of any disclosure of the Letter to anyone else
either by me or my attorney. No one was present at the hearing
other than me, my attorney, Maki, and Judge Levy. Not even
a court reporter was present.

After obtaining the Letter through discovery, subject to
the Protective Order, Maki provided it to the Defendants
Lee Data and Robert Gordon to use outside of the scope of
litigation, in violation of the Order, for the purpose of
further disclosing it to the Lawyers Board of
Professional Responsibility, in connection with misconduct
charges filed against me by Gordon. The Lawyers Board
dismissed the charges against me.

At the time of its decision to dismiss Lee Data's and
Gordon's retaliatory charges against me, the Board's
investigating officer, Vance Opperman, advised me of the
unauthorized disclosure of the Confidential Letter by Lee Data
and its attorneys. Mr. Opperman advised that Dorsey &
Whitney's attorneys prepared and directed the presentation
of the charge to the Lawyers Board. Maki has admitted
that the Letter was made available to Lee Data's in-house
counsel, Warren Simpson, and that it was presented to the
Lawyers Board. (See Maki Letter, Oct. 17, 1989, Plts.Aff.,
Exh. Z, p. 1, prg. 3.) Acknowledging those facts, Maki
argues that the Letter was produced in open court and was
not entitled to protection. (See Prot.Ord., prg. 6, Is. 16-22,
regarding an identical situation and requiring the confidence
to be preserved.) I complied with the requirements of the
Protective Order when the Letter was produced. The Letter
was plainly marked "Confidential" at the time it was given to
Maki, and that is all that was required to bring it within the
Order. (See Prot.Ord, prg. 4, ls. 13-14; and prg.2.) The
circumstances in the court room were as described above. The
Protective Order was in force at the time of the
production. The disclosure of the Letter by Maki and

90

Ginsburg to Lee Data was made without notice to me. I noted
the confidentiality of my records at my deposition, pursuant to
Prot.Ord., prg. 6. (See Berg.Depo., EXH. W, p. 153.) The
disclosure by Lee Data to the Lawyers Board was made
without notice to me, in breach of the Prot.Ord., prgs. 1, 8, 12,
15,

All of the above described disclosures were made in
violation of the Protective Order. (See Prot.Ord., prgs. 1, 6,
7, 8, 12, and 15.)

[V. UNDUE HARASSMENT.
Reference MRPC, Rule 4.4:

"In representing a client, a lawyer shall not use means
that have no substantial purpose other than to embarrass,
delay, or burden a third person, or use methods of
obtaining evidence that violate the legal rights of such a
person.”

The named Dorsey & Whitney attorneys incited my
former employer, Diane G. Hanson, to perjure testimony
against me, (as explained above), to act on her terroristic threats
and to defame me. The actions of Hanson are well
documented by Dist. Cr. Case Number CT-91-12540,
Fourth Judicial District, State of Minnesota and the courts
order against Hanson and her company’s dated Nov. 4, 1992.
The record and order in that case are incorporated here by
reference. Maki and Ginsburg caused undue harassment of
me by inciting Hanson. They incited Hanson by falsely
representing to her and her attorney, Andrew Theodotou, that
I flagrantly misused the legal process, that I acted deceitfully
and that I engaged in “aberrant sexual conduct". All of
those representations were false and maliciously made
for the purpose of causing Hanson to act on her terroristic
threats and to encourage her to fabricate perjured

91

testimony. Hanson's letter dated July 20, 1992 to the Board of
Professional §_ Responsibility shows Hanson's reliance on
Dorsey & Whitney's attorneys’ representations and opinion
about me. (See EXH. AA, prg. 3.) All of Hanson's
allegations against me are without any basis in fact, and
were developed through Maki and Ginsburg's representations
and transmission of confidential information to her. They
incited Hanson through false representations, amounting
to criminal defamation, (Minn.Stat., Sec. 609.765), just as
they inflammed the Court's hostility through misrepresentation
and fraud.

The October 7, 1991 letter of Theodotou to Robert
Mandell, (EXH. I), reflects Dorsey's representations to him that
I was involved in sexual misconduct. Ginsburg made
those representations to Theodotou to encourage him to
subpoena the documents so that Ginsburg could create a
pretextual excuse for his wrongful disclosure of
confidential and proprietary documents to Hanson.
Ginsburg actually gave documents and information to
Hanson to prepare her perjured testimony, prior to her
deposition of September 1991, and in violation of the
Protective Order, all as discussed above. Recognizing that
his wrongful disclosure of the documents could later be
discovered, Ginsburg needed the guise of the Department of
Jobs and Training subpoena. (See discussions above.)

At the same time, or shortly after, Dorsey's attorneys
made false representations to incite Hanson, Hanson actually
followed up on her threats and plotted to have me murdered.
(See Swanson Aff., prg. 6, Exh. M of Pits.Aff,,
Dist.Crt.File: CT-91-12540.) Maki and Ginsburg acted
maliciously with foreknowledge of the potential consequences
of their actions because they had prior notice of Hanson's
terroristic threats against me and my family. Maki and
Ginsburg thoroughly reviewed my Complaint against
Hanson, which details some of her threatening acts and

92

statements, prior to and in preparation for their deposition
of Hanson. (See Hans.Depo., Pits.Aff., Exh. H,
Dist.Crt.File: CT-91-12540.)

V. BRIBERY. aed

Minn. Stat., Sec. 609.42, describes acts _ that constitute
bribery. Specifically, Subd. 1, prgs. (3) and (4) apply to
Dorsey's actions with respect to Hanson's testimony and
the transmittal of my protected confidential medical records to
her in violation of a Court Order. The statute refers to any
benefit or reward or consideration to a person who is about to
become a witness. It does not require the payment of money.

Due to my pending action against Hanson, she wanted
confidential and other discovery information from Dorsey &
Whitney to assist her ina defense against me, to use for
Purposes of malicious defamation, and to blame me for her
corrupt conduct which was being investigated by the attorney
generals offices of North Dakota, Minnesota, Oregon and
Illinois.

Dorsey & Whitney provided my confidential medical
records to Hanson in violation of the Protective Order, as a
bribe for the purpose of encouraging her false testimony
against me. Hanson did not have a legal right to that
information, and she needed it to develop her false
testimony against me.

VI. ABUSE OF PROCESS

The Defendants’ and their counsels’ actions in this case
constitute an abuse of process because the Defendants used the

The Defendants therefore used the Courts’ Order and the

93

discovery process in the litigation to fulfill their ulterior
motives of coercion, obstruction of justice, and fraud.

Abuse of process of the Court is the malicious perversion
of a regularly issued process whereby a result not lawfully or
properly attainable under it s secured. Wodd v. Barv, 1937,
179 Minn. 208, 271 N.W. 447. Proof of an abuse of process
requires a showing of two elements:

1. The existence of an ulterior purpose; and

2. The act of using the process to accomplish a result not
within the scope of the proceeding in which it was issued,
whether such result might otherwise be lawfully obtained or not.

Pow-Bel Construction Corp. v._Gondels, 1972, 291 Minn.
386, 192 N.W.2d 812.

An abuse of process also arises upon the misuse or
misapplication of process, after it has been issued, Kittler

& Hedelson v. Sheehan Properties, Inc., 1973, 295 Minn.
232, 203 N.W.2d 825.

The Defendants' and their counsel used the subpoena
process in disregard for MRCP, Rule 45, which is an abuse of
process in itself, for their ulterior purposes as explained
above.

VII. CONCLUSION

The Defendants Lee Data and Gordon, and Defendants’
counsel, Ginsburg and Maki violated the Court's Protective
Order for wrongful purposes, abused the process of the
Court for unlawful purposes, concealed material evidence
and have made a multitude of material misrepresentations.
Defendants’ counsel Ginsburg and Maki wrongfully bribed a
witness and created false testimony for purposes of coercion,
fraud and other improper purposes. I am asking the Court

94

to hold Ginsburg and Maki in contempt, and to award me
all of my attorney fees and costs on separate affidavit and
application to the Court, and for reimbursement for
sanctions previously paid, without prejudice to my right to
seek recovery of further damages for all claims I may have.

The failure to obey an order in favor of an opposing
party in a civil proceeding constitutes a constructive or direct
contempt. Johnson v. Froelich, 1935, 196 Minn. 81, 264
N.W. 232; T. Vv idt, (Minn.Ct.Appls.
1986), 397 N.W.2d 483. The purpose of such a contempt
Sanction is to "coerce the future compliance by imposition of a
sanction of indefinite duration terminable on compliance or
inability to comply In_re_ AW's Welfare, (Minn.Ct.Appls.
1987), 399 N.W.2d 223: v. ited Packin
House Workers, 1949, 228 Minn. 571, 37 N.W.2d 831; Cohen
v. Mirviss_ Mfg. Co., 1927, 173 Minn. 100, 216 N.W. 606.
Where there is a failure to obey a court order in favor of an
Opposing party in a civilproceeding the sanction is an
inducement for future compliance with the Order and to
vindicate the opposing parties rights. Minnesota State Bar

lation _v. Divor i iati 1976, 248
N.W.2d 733.

The contempt power exists independently of the
statutes, In re R.L.W., 1976, 309 Minn. 489, 245 N.W. 232,
and the power to determine what shall constitute contempt
and to punish therefore is inherent in the Court. Johnson _v.
Froelich, (Id.) It is essential to the effetiveness of all other
court powers. In re R.L.W., (Id.)

In this matter, Minn.Stats., Sec. 588, et.seq., applicable to
Contempts, also provides for the protection of my rights in this
case. In connection with the violations of the Protective Order,
the court's insight in the case of i Vv l

Martindell_v. International
Telephone and Telegraph Corp., C.A.N.Y., 1979, 594 F2d 291,

95

SO eg Rae ee eee TS) ane een by

is directly applicable to the conduct of the Defendants’ counsel
in this case. That court observed: ;

"Unless a protective order is to be fully and fairly
enforceable, witnesses relying upon such orders will be

inhibited from giving _ essential testimony in civil
litigation, thus undermining a procedural system that has been
successfully developed over the ears for the disposition of
civil differences; in short, witnesses might be expected
frequently to refuse to testify pursuant to protetive orders "

Defendants' own memoranda in this case, and throughout
the record, provides ample legal basis for imposing the
obligation on Defendants to pay attorney fees as a sanction
for their actions here, and for granting me whatever
remedial orders may be necessary.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1644%3A2. Public record. Not legal advice.