DORCHESTER COUNTY, SC (QUEEN CITY NEWS) — South Carolina Law Enforcement Division Chief Mark Keel’s waited five weeks for a judge to decide whether to remove his name from a court document fining Keel for multiple discovery abuses in a civil case a hemp farmer filed against SLED, the SC Attorney General’s Office, the SC Department of Agriculture, and the Dorchester County Sheriff’s Office.
The farmer, Trent Pendarvis, was arrested by SLED agents in September 2019 after agents showed up and mowed down his hemp crop. Agents charged Pendarvis with unlawful hemp cultivation, a charge prosecutors later dropped for “insufficient evidence.”
On Feb. 28, 2023, Circuit Court Judge Maite Murphy ordered Keel to pay the hemp farmer’s attorney, Patrick McLaughlin, an $11,307 fine for what the judge described as “dilatory, prejudicial, willful, intentional and in bad faith,” discovery misconduct.
Murphy further described Keel’s discovery responses as, “false, misleading, and incomplete.”
On March 10, Keel’s attorney, Andrew Lindemann, filed a motion asking Murphy to reconsider her sanction order. Among the elements Lindemann wanted the judge to reconsider was naming Keel in her order. Keel was sued in his official capacity as the director of SLED and the order should have named SLED as the defendant, Lindemann wrote in his motion.
“Yet, throughout the Court’s February 28, 2023 Order, the Court refers to the defendant only as “Keel” which is incorrectly suggestive that Mark Keel individually has been sued and that the Court’s Order and findings personally are directed against Mark Keel individually to accurately reflect who the proper party is and against whom or the Order is directed, the Court is respectfully requested to alter the Order to reflect the proper party as the Defendant SLED and to make it clear that this Order is not directed at Mark Keel individually. Mark Keel individually was not personally or directly involved in the discovery process, and as a result, the Order creates the misconception, or at the very least is misleading, to suggest that the Order, its findings, and the sanctions are directed against Mark Keel individually or personally. That misconception was created by the manner in which the Order was prepared initially by Plaintiff’s counsel, and respectfully, should be corrected by an amended order.”
Andrew Lindemann, SLED Chief Mark Keel’s attorney
On April 5, five weeks after Keel asked Judge Murphy to revise her order against him, Murphy denied Keel’s motion.
“After careful review of the Defendant’s Motion to Alter or Amend Order and/or Motion to Reconsider along with the Plaintiff’s Response, previous briefings and arguments the Court respectfully Denies the Defendant’s Motion. The matters raised in the Defendant’s Motion do not support Rule 59(e) relief,” Murphy wrote in her April 5, 2023 denial order.
Pendarvis’ attorney argued in response to Keel’s motion, telling the court Lindemann identified Keel as the defendant throughout the litigation, even naming Keel in court filings and responses to Pendarvis’ court filings.
“Over the course of six filings and ten separate discovery responses in this case, Keel has self-identified as “Defendant Keel” in some form or fashion approximately 100 times,” McLaughlin wrote in a March 13 response to Keel’s motion asking the judge to remove his name from the sanctions order.
SLED accused Pendarvis of growing hemp in an unapproved field, although Pendarvis was licensed to grow an allotment of hemp on his family’s Dorchester County farm.
Queen City News Chief Investigator Jody Barr asked SLED Chief Mark Keel for a response to the judge’s denial and whether Keel plans to appeal Murphy’s sanction order.
SLED’s response:
“SLED disagrees with this order and is evaluating all available options to challenge it.”
– Ryan Alphin, Executive Affairs Director
Pendarvis said he had to move his hemp field from the original field he provided the SC Department of Agriculture in 2019. When Pendarvis reported the updated coordinates, the SCDA asked SLED to investigate.
Agents took action in September 2019, seizing and destroying his field.
Pendarvis’ criminal charges were dropped nearly a year later, but the hemp crop he hoped to harvest was long gone, mowed down by a SC Forestry Commission tractor and bush hog at SLED’s command 11 months earlier.
Pendarvis would later sue SLED, Keel, the SC Attorney General’s Office, SC Department of Agriculture and Commissioner Hugh Weathers, the Dorchester County Sheriff and a list of deputies, and the SC Forestry Commission and some of its staff. The lawsuit was filed days after Pendarvis’ criminal charge was dismissed by the solicitor’s office for “insufficient evidence.”
Pendarvis’ attorney, Patrick McLaughlin, began fighting with SLED and Chief Mark Keel over what he described as Keel’s attempt to hide and keep evidence from the farmer as they worked to prove their claims that SLED conspired to arrest the farmer and destroy his hemp crop as the political climate in the state was moving toward broader legalization of cannabis.
“The defendant’s conduct in this case was not just obstructionist discovery conduct meant to obstruct the plaintiff from getting discovery, it was also meant to mislead the plaintiff,” McLaughlin told the judge during the October 2022 hearing that led to the Keel sanction.
“And quite frankly, it was also meant to mislead the court in several instances,” McLaughlin said.
McLaughlin told the judge Keel failed to comply with “Rule 33” verifications in SLED’s responses to the lawsuit, which requires a defendant to answer interrogatories posed in a lawsuit “fully and in writing under oath.”
“Despite the clear and plain language of the rule requiring answers under oath, and the specific requests by the Plaintiff that requirement be complied with, KEEL has failed to comply with Rule 33. The Plaintiff has served Keel with four (4) sets of interrogatories. During the hearing, Keel conceded to only producing Rule 33 verifications for two (2): the 2nd and 3rd set of interrogatories,” Judge Murphy wrote in her Feb. 28 order.
McLaughlin told the judge he sent formal notice to Keel’s attorney, Andrew Lindemann, five separate times, asking for the oath verifications, but Keel never provided them. “Despite having written notice for 356 days before the hearing, Keel failed to cure his deficiencies,” the judge wrote in the order relating to the Rule 33 verifications.
Another violation Pendarvis’ lawyer argued, happened with SLED’s fight against releasing personnel files of agents involved in the raid, seizure, and destruction of the hemp crop. Keel’s attorney wrote in response to McLaughlin’s request for those files, “Request seeks information that is not relevant or designed to lead to the discovery of relevant information, nor is the request proportional to the claims and issues raised in this litigation. This request is also not tailored to any specific types of information contained in personnel files nor is it limited in time or scope,” Keel answered.
Judge Murphy found Keel and SLED had no grounds to keep those files from Pendarvis, “The first two sentences of Keel’s written objection are essentially the type of generalized, conclusory objections Judge Joseph Anderson’s oft-cited discovery opinion explains are inadequate: ‘The mere statement by a party that the interrogatory was ‘overly broad, burdensome, oppressive and irrelevant’ is not adequate to voice a successful objection…’, Murphy wrote in her order.
“Keel’s objection as to relevancy is insufficient and improper,” Murphy wrote, continuing that the personnel files may contain evidence.
“It is axiomatic in this action against Keel, given the pled causes of action and factual allegations, that the personnel files of Keel’s agents/employees involved in the case are reasonably calculated to lead to admissible evidence. Keel did not articulate why personal [sic] files would not be likely to lead to relevant evidence,” the judge wrote.
The judge found that two requests for admissions Keel initially denied will be “deemed admitted.” McLaughlin asked Keel to admit to two facts: admit that SLED sought judicial approval to destroy the hemp crop and admit that judicial approval was denied.
Keel denied SLED sought judicial approval and he denied judicial approval to destroy Pendarvis’ crop was denied.
Keel’s denials happened despite emails McLaughlin uncovered showing SLED General Counsel Adam Whitsett emailed Dorchester County Judge Dianne Goodstein’s law clerk, Gil Gatch – who is now a sitting state representative – asking for the judge’s approval to seize and destroy Pendarvis’ crop.
Whitsett’s email asked Goodstein for a meeting to “discuss” a “proposed Hemp/Marijuana Seizure Order and Order of Destruction in the hope that the Judge will sign it,” Whitsett wrote.
The email also showed SLED Major Frank O’Neal had already spoken with Gatch. Gatch did not return messages seeking comment for our ‘Seize and Destroy’ investigation.
“The judge has reviewed your proposed order and has decided not to sign it,” Gatch wrote in a Sept. 11, 2019, reply to Whitsett. “She told me to let you know that if you would like a hearing on the matter, she would be glad to give you one,” Gatch wrote in closing the email.
But Whitsett declined the judge’s offer to give Pendarvis a hearing. “Please let the judge know that we appreciate her consideration and do not anticipate needs a hearing on this matter at this time,” Whitsett wrote to Gatch and Goodstein more than an hour later.
“The response evades admitting or denying whether judicial approval was sought for the destruction of the Plaintiff’s hemp crop. The request did not ask Keel whether judicial approval had been sought to arrest the Plaintiff. It specifically asked Keel to admit whether judicial approval had been sought to destroy his hemp crop. Admitting that SLED sought approval to arrest the Plaintiff is a blatant attempt to avoid admitting or denying whether SLED attempted to comply with August 8, 2019 opinion they received from the South Carolina Attorney General,” Murphy wrote in her Feb. 28 order.
Despite Keel’s denial of the two questions, Judge Murphy found because of how Keel handled the questions, he is now deemed to have admitted both facts.
KEEL’S DISCOVERY CONDUCT
“I find that Keel’s conduct regarding discovery in this case has been dilatory, prejudicial, willful, intentional and in bad faith and his responses have been false, misleading, and incomplete,” the judge wrote in the Feb. 28, 2023 order.
Even after Pendarvis’ counsel warned Keel in March 2022 they’d move for sanctions if Keel didn’t “cure deficiencies” in his answers to the Pendarvis lawsuit, the judge noted Keel “ignored those noted deficiencies and warnings, refusing to cure his obviously inaccurate responses, and forced the Plaintiff to file his motions,” Murphy wrote.
Murphy also noted in her order that Keel “failed to offer the Court any reason or excuse” as to why he didn’t heed McLaughlin’s warnings.
The judge also pointed out that Chief Keel never turned over “numerous communications,” he should have known was part of the discovery record in the Pendarvis case. Murphy pointed out examples of emails kept from Pendarvis – emails with Pendarvis’ name typed into them and should have been captured in a proper search of the agency’s email account.
“Emails in the record that Keel did not identify or produce, were sent from and to “sled.sc.gov” email addresses. Keel is the Chief Law Enforcement Officer of the State of South Carolina. It is inconceivable that Keel does not have the knowledge and capability to execute a key word/term search of his agency’s digital email archives to identify and obtain every email communication that would be responsive to the Plaintiff’s discovery requests. The record reflects Keel failed to do so,” Murphy wrote.
“Now, can I stand here and say they got every single email? Well, we produced the entire files on these two particular incidents, these two particular investigations,” Keel’s attorney Andrew Lindemann told Murphy in the Oct. 31 hearing. “To this extent there may have been some additional emails that he (McLaughlin) was able to obtain through discovery with the Department of Agriculture, I’m not disputing that. But the bottom line is to suggest that we didn’t produce emails along the lines of what was request for is just absolutely false.”
Murphy imposed a fine of $11,307.36 to cover McLaughlin’s attorney’s fees for the delays caused by what the judge described as incomplete and false responses. The judge also ordered Keel to perform another keyword search of SLED’s email account and provide any previously withheld discovery evidence to Pendarvis.
Keel has 30 days to comply, according to the order.
Chief Mark Keel had continued to refuse interview requests with Queen City News for our ‘Seize and Destroy’ investigation. We asked Keel for another interview following the Feb. 28 order, but a SLED spokesman denied the request, “Thanks for reaching out. As we have said previously, SLED and Chief Keel will not be commenting while litigation is pending,” Ryan Alphin, SLED’s Executive Affairs Director told QCN in an email the day Murphy published her order.
