A Circuit Court Judge has ordered the City of Aiken to comply with the rules of discovery and produce all documents related to Project Pascalis. (see previous, related story Former AMDC Commissioners Seek Full Disclosure of Pascalis Documents.)
by Don Moniak
November 8, 2024
Updated November 14, 2024
Updated March 4, 2024
In early May of this year, Plaintiffs in the Blake et al vs City of Aiken et al lawsuit, aka as the “Pascalis lawsuit,” filed a Motion to Compel all records pertaining to Project Pascalis. The Motion was submitted less than four months after Interrogatories and a Request to Produce Documents were sent to Defendant City of Aiken.
In a subsequent July 5th Memorandum of Law in Support of the Motion to Compel, Plaintiffs argued that the City “has not even tried” to respond to discovery requests—a statement supported by the fact that a mere nine records had been produced by the City—six of which were already public and one of which had been privately published in late 2022 after it had been made public.
The City’s stiff resistance to the discovery process included a few nebulous tactics; such as frequent non-specific referrals to the its document repository—essentially telling Plaintiffs to find relevant records within an expansive public domain; all while refusing to provide nonpublic records.*
Another tactic was to refer Plaintiffs to another party for documents, described in the Motion as “Go ask someone else.”
Due to the City’s failure to adhere to rules of discovery, on October 14, 2024, State Circuit Judge Maite Murphy ordered the City of Aiken to answer all submitted questions and produce all requested records; as well as produce a log of all documents deemed as potentially privileged and confidential.
Included in the order are instructions to release, within ten days, all requested records that “are not privileged and reasonably calculated to lead to relevant evidence,” and conduct a broad electronic search, dating back to August 1, 2019, for fifteen key words or phrases; including “Project Pascalis,” “Ray Massey,” “WTC,” and “Hotel Aiken.” In the process, The City cannot “refer to another party as having those documents as an answer to these requests.”
Judge Murphy’s order nearly coincided with the October 17th Motion for a Protective Order Authorizing Testimony and Documents filed by Attorneys for former AMDC Commissioners Keith Wood and Chris Verenes. That Motion seeks the release of 120 documents listed in a “privilege log” that might be classified as privileged attorney-client work product.
Even without the privilege log documents, Wood and Verenes have already produced 1,318 pages of documents related to Project Pascalis—more than 10X the volume of records produced to date by the City of Aiken. (Because the 1,318 pages of records have yet to be placed in the public domain via a court filing, a FOIA request has been submitted to the City of Aiken for their release).
A hearing on the Woods/Verenes Motion to release records listed in the “privilege log” is scheduled for December 5, 2024, at the Aiken County Courthouse.** To date, attorneys for the City have not filed a response.
These latest developments will be topics of discussion at an Aiken City Council closed-door Executive Session this coming Tuesday, November 12th. The session is being held to receive legal advice and a legal briefing specific to the Pascalis lawsuit.
The Executive Session will be a test of Mayor Teddy Milner’s straightforward campaign platform of increased “accountability and transparency.” After years of stonewalling efforts to get to the heart of the Pascalis project workings, Mayor Milner and the rest of Council have the opportunity to quit playing information games— as the City did with Freedom of Information Act requests***—and comply with South Carolina’s rules of discovery in civil cases.
(Update: The prepared order, which was provided in the earlier version, was not the signed order until November 13th. The City of Aiken has until November 23rd to comply with the order.)
Update March 4, 2024:
A followup to https://aikenchronicles.com/2024/11/08/city-of-aiken-ordered-to-produce-project-pascalis-records/
In regard to the Project Pascalis lawsuit, a “Stipulated Order Governing the Disclosure of Privileged Information” was recently posted in the case index at sccourts.org
The order governs the production of Project Pascalis documents, which the City of Aiken claims to exceed 121,000.
Because the City’s review extended beyond the deadline to produce documents that was ordered in November 2024, an agreement was reached that will “allow the Plaintiffs to gain access to the Subject Documentation as soon as possible” while allowing “the City to preserve all privileges that may apply to the Subject Documentation.”
The way it will work is the City of Aiken will designate material as being “under review,” those documents will be provided to the Plaintiffs within two days of this latest order—meaning the documents should have been produced by now. All documents received will be treated by Plaintiffs as confidential until a final review is completed within 90 days.
If the City of Aiken deems that a document provided should be considered privileged, it can “clawback” the document. Once the City issues its opinion, the Plaintiffs can challenged it within seven days by filing a Motion to Compel. If there is a successful challenge, then the materials may be used in filings and depositions.
It appears in this case that the City has the upper hand and the cost of the burden of proof regarding privilege will be borne by the Plaintiffs. The City can err on the side of caution and/or resistance and the Plaintiffs have only seven days to file a Motion to Compel challenge.
The order is available at :
Footnotes
* In fact, the website for one set of relevant records in the public domain, that of the Aiken Municipal Development Commission, was surreptitiously removed by City officials sometime this past summer.
** The Courthouse is at the intersection of Park Avenue and Chesterfield Street. The Hearing is scheduled to be held in Courtroom 4. It is the 8th of 14 Motions scheduled to be heard. The first hearing is at 9:30 am. Each hearing lasts for 15-45 minutes. Check the Civil Roster for any updates.
*** Previous stories related to the City of Aiken’s “information games:”
The City of Aiken’s Information Games, Part One; which documented the effort to charge three different parties an identical $5312 involving exactly 332 hours of labor in response to three distinct, separate FOIA requests pertaining to Project Pascalis over a two month period from March 18 to May 12, 2022.
The City of Aiken’s Information Games, Part Two; which documented the City’s silent removal in October 2022 of a key Project Pascalis document from the public record.
The City of Aiken’s Information Games, Part Three; which documented the redaction of legal invoices that had already been publicly released in nonredacted form—including censoring the very term Project Pascalis.
Three Missing Pages. See Footnote 1 for a discussion of how the City brazenly attempted to charge a $599 FOIA fee for what turned out to be a single document.
Keeping Up Appearances… ; which documented how the AMDC’s public version of the $10 million bond issuance for the Pascalis properties omitted key sections from the entire version.
Thank you Don. ☀️
An interesting story behind this. A new city administration (as a direct result of Pascalis). One would think total cooperation, as it happen prior to my involvement. Yet it appears there is some reluctance to come forward. Is it possible that those behind Pascallis have unyielding power?
The Best Small Town in the South has quite the Deep State Swamp within its municipal government, no? Voters elect a new mayor, yet the song remains the same. Perhaps if the City were to hire new counsel . . .
Finally! No doubt the city has been stonewalling for a reason and it looks as though we are going to see what it is. Thank you Don for all you do!
Thank you for your dedication to keeping us informed. It would be great to see this resolved sooner than later!
Thanks for the informative update, Mr. Moniak.
Hooray for this victory for citizens/taxpayers over very secretive, foot-dragging, irresponsible and unresponsive city government officials. Indeed, the time has come for Mayor Milner (the only current city official who was not a part of the Project Pascalis debacle, and subsequent dissembling and coverup) to stand up and speak out. Will she prove herself to be a profile in courage, or just another member of the get-along, go-along gang?
I wonder what those records — that city officials (and their well-paid lawyers) have been so determined to keep hidden — might reveal? Kudos to the lawsuit plaintiffs and Messrs. Verenes and Wood for pursuing what is likely to be revealed as the ugly truth.
Great work Don!
The BS about coughing up all records is ridiculous. Just proves something to hide. Certain papers removed? Really????