COLUMBUS — Doug Mansfield, the attorney representing the Doe family in a civil suit against suspended Mount Vernon Middle School science teacher John Freshwater, claims Freshwater should face ultimate sanctions for not complying with court orders. The court had ordered Freshwater and his attorney, Kelly Hamilton, to turn over certain documents, billing records and materials related to the Does’ contention Freshwater unconstitutionally taught religion in the classroom.
Freshwater Controversy
Plaintiffs' memorandum in opposition to defendant's motion for reconsideration of opinion and order issued June 1, 2010 Adobe Reader required
recent actions in the doe family’s civil suit against john freshwater:
On April 12, Magistrate Judge Norah King of the United States district court issued an order that Freshwater produce certain documents — personal notes, affidavits and certain educational and religious material — which were allegedly used in the termination hearing.
On May 7, the Doe family filed a motion for sanctions against Freshwater for not producing the requested material. The material includes 15 electronic affidavits which were supposedly completed in May 2008, before the school board voted to consider the termination of Freshwater’s teaching contract. Freshwater has claimed those affidavits would have mitigated his case before the school board.
Freshwater’s attorney in the contract hearing, Kelly Hamilton, said those documents were lost because his computer was destroyed by a water pipe break. The court then ordered him to produce, by the end of May, billing records relevant to the preparation of the affidavits. It also said other materials should be turned over to the Does’ attorney, Doug Mansfield, and ordered Freshwater and Hamilton to reimburse the Does’ attorney’s fees and costs related to attempts to obtain the documents.
On June 24, District Court Judge Gregory Frost again ordered Hamilton to produce the billing records. Hamilton failed to do so, claiming the billing records were also destroyed in the “flood” which destroyed his computer. Hamilton also asked the court to reconsider the order to make him and Freshwater pay the plaintiff’s attorney fees and costs.
On July 2, Mansfield filed an opposition to Hamilton and Freshwater’s motion for reconsideration. According to court documents, besides stating the motion for consideration should be denied, Mansfield concluded “the court should enter judgment in the Does’ favor, or, in the alternative, should enter the requested evidentiary evidence.”
Hamilton had filed a motion asking the court to reconsider its order to produce the material, as well as the order for Freshwater to pay the Doe family’s attorney fees and costs related to attempts to obtain the material.
In countering that motion, Mansfield argued that Hamilton’s claim that the billing records were lost in a flood is false. Hamilton, he said, produced those billing records and gave them to the school board’s counsel on March 17, 2009, two months after the alleged flood.
Because of a gag order issued by the court, the News was unable to obtain copies of the bills, but the motion filed by Mansfield said the records confirm some affidavits were not done in May 2008, as Hamilton maintains.
Regarding certain materials from Freshwater’s classroom, Mansfield stated, “Mr. Freshwater continues to flatly ignore his discovery obligations.” In a May 28 affidavit, Freshwater claimed he gave all of five armloads of material to the plaintiff’s counsel for review. That claim is contradicted by testimony from the contract termination hearing, which indicated not all of the materials were turned over to the plaintiffs.
Mansfield further states Freshwater should have produced “clandestine” audio recordings of conversations between Freshwater and former school board member Steve Hughes, and Freshwater and other individuals.
Another allegation is that Freshwater has not produced various e-mails considered to be related to the case. “Mr. Freshwater and Mr. Hamilton,” Mansfield wrote, “should not be permitted to escape sanctions for these continued cat-and-mouse discovery games.”
Mansfield also said Freshwater and Hamilton are in violation of the court’s order to pay some of the Does’ attorney fees and costs. According to court documents, Freshwater gave Mansfield an Affidavit for Lien as payment in full for the attorney fees and costs. Previous testimony stated Freshwater had already given Hamilton “the paper” on Freshwater’s property.
The lien, however, cannot take effect without going through common pleas court. The News found no record of the transfer to Hamilton or of the payment lien in the Knox County Recorder’s Office or in common pleas court.
Mansfield stated the “purported payment is invalid because prior creditors already have claim to the property in question.”
He continued, “Mr. Freshwater should face the ultimate sanction for his noncompliance with this court’s discovery and sanction orders — judgment on the claims against him, a default judgment in favor of the plaintiffs.”
In an alternative to the default judgment, Mansfield asked the court to establish as fact that Freshwater’s 15 affidavits were not prepared in May 2008 as Freshwater contends. Although Freshwater claims the posters of the Ten Commandments and box of Bibles in his classroom were for secular purposes, Mansfield petitioned the court to rule that materials Freshwater had in his classroom, but did not produce as ordered, were religious items that served no secular purpose.
Calls to Hamilton and the attorney representing Freshwater in the civil case were not returned as of press time.