COLUMBIA, S.C. (QUEEN CITY NEWS) – The head of the South Carolina Law Enforcement Division is still working to undo a Lowcountry judge’s order fining him $11,300 for discovery abuses against a Dorchester County hemp farmer.
SLED Chief Mark Keel was ordered to pay Trent Pendarvis’ attorney $11,300 in sanctions for the way SLED handled discovery in the farmer’s civil suit.
In August 2021, Pendarvis sued SLED, Keel, South Carolina Agriculture Commissioner Hugh Weathers, and Dorchester County Sheriff L.C. Knight after SLED agents called Pendarvis to meet them in his hemp field in September 2019. SLED Major Frank O’Neal, Captain Glenn Wood, and Agent John Neale surrounded Pendarvis.
Neale handcuffed Pendarvis while his boss, Major O’Neal, helped search the farmer. Captain Wood wore a body camera and video-recorded parts of the encounter. Some of the video of the encounter was not recorded as the video showed Wood manually turning the camera on and off during the raid.
SLED had the S.C. forestry agents use equipment to mow down Pendarvis’ Dorchester County crop that day. Within days of the Dorchester County raid, SLED was on its way to mow down Pendarvis’ second hemp field in Marion County, but a judge stopped SLED after the farmer’s attorney asked Judge William H. Seals, Jr. to sign a restraining order against the state’s top law enforcement agency.
Seals signed the order.
The farmer’s attorney, Patrick McLaughlin, filed a motion last fall, asking Dorchester County Circuit Court Judge Maite Murphy for sanctions against Keel over SLED’s handling of discovery in the case. Murphy fined Keel $11,307.36 to pay for McLaughlin’s attorney fees for delays caused by what the judge described as incomplete and false responses.
Murphy also ordered Keel to perform another keyword search of SLED’s email server and turn over all discovery evidence previously withheld from Pendarvis’ legal team. Murphy described Keel and SLED’s handling of the farmer’s lawsuit as “intentional, willful, and bad faith conduct,” according to the Feb. 28, 2023, order sanctioning Keel.
“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. “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.”
McLaughlin told the judge during the Oct. 31, 2022, hearing that he warned Keel in March of 2022 they’d seek sanctions against Keel and SLED if the agency did not properly respond to the questions posed in the lawsuit.
The judge agreed with McLaughlin regarding the delays caused by Keel’s discovery conduct.
Keel “ignored those noted deficiencies and warnings, refusing to cure his obviously inaccurate responses, and forced the Plaintiff to file his motions,” Murphy wrote, further finding that Keel “failed to offer the Court any reason or excuse” as to why he didn’t heed McLaughlin’s warnings.
The penalty for Keel not properly answering the requests for admissions is the court deemed Keel and SLED to have admitted to the facts laid out in the questions.
The judge also noted in her Feb. 28 order that Keel withheld “numerous communications” sent from the agency’s taxpayer-funded email server that contained Pendarvis’ name.
“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 keyword/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 in the sanctions order.
On March 10, Keel asked Murphy to reconsider her sanctions order. On April 5, Murphy issued a two-sentence order denying Keel’s request to reconsider the sanctions imposed against him and SLED.
Keel had 30 days to comply with Murphy’s Feb. 28, 2023, order or be held in contempt of it. But at 4:07 p.m. on May 5, 2023, the 30th day, Keel and his attorney, Andrew Lindemann, filed an appeal of Murphy’s orders with the South Carolina Court of Appeals.
“The timing of the appeal is neither accident nor happenstance,” McLaughlin wrote in a May 8 motion asking the appeals court to dismiss Keel’s appeal.
The farmer’s attorney argued SLED filed the appeal to further delay litigation that’s already spanned three years.
“This appeal was intentionally filed right before that deadline for compliance to avoid the Appellant being in contempt of the trial court’s order and subject to further sanctions for that contempt. This appeal was intentionally filed in that improper manner despite this Court having previously instructed in Funny on the proper way to appeal such an order: be found in contempt pursuant to Tucker and appeal the contempt order,” McLaughlin wrote in the May 8 motion.
“In a case in which the very order being appealed found Appellant to have engaged in conduct that was dilatory, prejudicial, willful, intentional, false, misleading, incomplete and in bad faith, resulting in clear, convincing and substantial evidence that the Respondent was prejudiced by having to unnecessarily expend substantial time and resources, this improper and frivolous appeal itself warrants sanctions,” McLaughlin wrote.
The appeals court ultimately agreed with McLaughlin and handed down an order on July 10 dismissing Keel’s appeal, finding Murphy’s order “is not immediately appealable.” The order cited three S.C. Supreme Court cases establishing legal precedence that discovery orders “are “interlocutory” and “not immediately appealable.”
Citing the 2003 case of Tucker v. Honda of S.C. Mfg. Inc., the appeals court order noted, “a party must refuse to comply with a discovery order and be held in contempt before the decision becomes appealable.”
Keel’s attorney, Andrew Lindemann, appeared to disagree with the legal precedence written into the appeals court order. In a May 18, 2023, filing, Lindemann wrote, “Because the trial court ordered certain requests for admissions to be deemed admitted by way of a pre-trial Rule 37 motion, the trial court, in essence, has granted partial summary judgment on those factual questions.”
Lindemann also complained to the appeals court about Murphy’s 30-day deadline to pay the sanctions and to turn over all evidence in the case, “However, by placing a thirty-day time limitation on SLED’s ability to pay the monetary sanction, the trial court has eliminated SLED’s right to appeal that sanction after final judgment. Simply put, if SLED complies with the trial court’s order and pays that sanction, then the issue is moot – the sanction has been paid,” Lindemann wrote in his May 18, 2023, response to the farmer’s motion to dismiss the appeal.
“The Appellant SLED recognizes the body of case law holding that “a party must refuse to comply with a discovery order and be held in contempt before the decision becomes appealable,” Lindemann wrote, “However, a monetary sanctions order should be treated differently because the sanctioned party is given the unfair (and arguably unconstitutional) choice of paying the sanctions and forfeiting its appeal rights even after final judgment because the payment will moot that issue or otherwise being held in contempt of court – which is a fundamentally unfair choice.”
Lindemann called the discovery conduct in the case “discovery disputes.”
“At the very least, the issues raised by the Appellant should proceed to full briefing and adjudication given the importance of the issues raised. The appeal should not be summarily dismissed. Each of the issues raised justifies an immediate appeal under the rationale of S.C. Code Ann. § 14-3-330 and the cited authorities. The Court is respectfully requested to deny the Respondent’s motion,” Lindemann wrote in closing his May 18 filing.
The South Carolina Court of Appeals summarily dismissed Lindemann and Keel’s appeal on July 10, sending the case back to the Dorchester County trial court.
Keel could ask the S.C. Supreme Court to review his appeal, but Keel did not answer whether he planned to do so. The chief did not respond to any of our questions about this latest development or our request to interview him to have his side included in our reporting.
Keel could also face contempt charges in Dorchester County over Judge Murphy’s Feb. 28 sanctions order. A hearing has not yet been set to address any possible sanctions in the case.
