O'Mara lets settlement offer expire in cookie case

On several occasions, The Putnam Pit has offered to drop its so-called federal "cookie" lawsuit against the City of Cookeville.

The offer intended to forego any damages if the city would simply provide access to information. T. Michael O'Mara, who represents the city in this case, failed to respond to the offer and it was withdrawn.

This offer to give up any monetary award in return for access to government Internet records would have spared taxpayers considerable liability. But O'Mara, who is running for district attorney general in the Democratic primary against incumbent William E. Gibson, failed to act and the offer was withdrawn. Since then, O'Mara has continued to collect money from the city to defend the case he failed to settle for free.

Here is a man who has continued to show he cannot judge the character or mettle of others, running for a position where bargaining is the currency.

Here is the offer:
Northeast Division

in his official capacity as City Manager of  the City of Cookeville, 

Case No. 2-97-108 






Pursuant to Rule 11 of the Local rules of Court, counsel for the parties have conferred and the initial case management conference to be held before Magistrate Judge Haynes on December 10, 1997 at 11:30 a.m. to discuss the following matters:

1. Status of service of process and responsive pleadings and jurisdiction do not present any issues that require further discussion.

2. The Plaintiff has filed a Motion for Preliminary Injunction seeking access to public records specifically the computer files of the City of Cookeville indicating usage of the Internet by public officials and employees. Parties shall seek to resolve this matter at the initial case management conference; if the matter is not resolved at the conference then Plaintiff may motion the Court for relief.
3. a. Plaintiffs' theory of the case:

Plaintiffs publish a newsletter and on-line web page critical of the local government. Plaintiffs seek access to public records for newsgathering purposes and have been obstructed on a regular, yet arbitrary, basis in gathering information including Internet files such as cookies and history files that indicate usage of the Internet by government officials. Plaintiffs have also been deliberately obstructed by the Defendants in obtaining public records such as parking tickets records in violation the Tennessee Public Records Act, the First Amendment, and the Fourteenth Amendment. Plaintiffs have further been denied distribution of the newsletter, The Putnam Pit, by outlets controlled by the Defendants that were previously available to other persons expressing ideas.

b. The Defendants' theories of the case:

It is Defendants' theory of the case that Plaintiff has no legal rights under either federal or Tennessee law to any of the relief sought in this action. Plaintiffs' Complaint fails to state a claim upon which relief can be granted.

First Plaintiff has no legal right of access to Cookeville City computer web site cookie, browser and/or cache files since these are not "public records" within the meaning of T.C.A. §10-7-503.

Second, even if a court resolves this question of first impression under Tennessee law in Plaintiffs' favor, in any event, Plaintiff has no federal constitutional right of access to such computer data.

It is further Defendant's theory of the case that City officials have allowed Plaintiff access to all public records; that any denials of access to Plaintiff of electronic data has not been nor unlawful and is supported by opinions of the State Attorney General.

It is further Defendant's theory of the case that, if to the extent Plaintiff contends in this lawsuit that any actions by the City with respect to Plaintiff's access to City records or data is in violation of his First Amendment rights because such actions as motivated by the content of Plaintiff's publications, such claims are barred and/or merged under the doctrine res judicata since that issue is the subject of a prior suit, Davidian v. O'Mara et al., No 2-97-0020, pending before this Court.

4. The parties shall conduct an initial phase of discovery directed toward disposition of the case through settlement.

a. The Plaintiff during this initial phase intends to conduct a deposition of the Defendant, Jim Shipley and Steve Corder. Subsequently, Plaintiff will submit a request for documents to both Defendants for the purpose of developing the case and responding to any dispositive motions of the Defendants.

b. The Defendants propose initial discovery as follows:

Defendants will take deposition of Plaintiff, Geoffrey Davidian. Upon completion of this initial depositions, Defendant propose postponing further depositions until resolution of Defendant's dispositive motions.

5. a. The deadline for the initial phase of discovery shall be March 10, 1998. A deadline for further discovery as well as the scope of further discovery will be determined and established at a later date.

b. The conference to discuss settlement and/or further proceedings will be held as determined by the court at the conference, and is to be held on ______________________. Plaintiff has submitted an offer to settle this case, No. 2-97-108, whereby the City of Cookeville will treat Internet files (such as cookies, browser files, temporary Internet files, cache files, history files, or any other computer files which indicate where Defendants, their employees, and/or agents have visited on the Internet) as open for inspection as a public record defined under the Tennessee Open Records Act, said Internet files will be available daily during regular business hours, the City of Cookeville will not establish a policy of deleting Internet files except at the end of each business day or a longer period of time as they so choose, and the City of Cookeville will allow its parking ticket files to downloaded electronically to a computer formatted disk at a reasonable cost to Plaintiff. In return, the Plaintiff will agree to dismiss this lawsuit with all parties bearing their respective costs.

6. This plan is submitted as a tentative proposal with the understanding that further details will be determined during the course of the conference. Both parties reserve the right to amend these positions.

7. a. Defendants propose that the state law issue of first impression regarding whether Internet history/cookie files are public records within the meaning of the Tennessee Open Records Act be remanded for resolution by the Tennessee state courts, and that this Court retain jurisdiction over Plaintiff's federal question §1983 claim.

b. Plaintiffs oppose this partial severance on several grounds. The Plaintiffs have the highest confidence that this Court will be able to fairly and adequately resolve all issues before the Court. Plaintiff would assert that Defendants are equitably estopped from partial removal of the state claims. Defendants overrode Plaintiffs' initial forum by exercising their right of removal. Such action was taken to the detriment of the Plaintiffs' seeking immediate injunctive relief. Defendants by requesting severance are complicating this litigation with a resulting delay of resolution or even a determination of which court will be exercising jurisdiction over the case. The result of partial severance would be costly parallel proceedings in state and federal court over issues and facts common to both proceedings. As such the state and federal claims, in the name of fairness and judicial economy, should proceed in one and the same forum, whether state or federal. Since Defendant sought a proper removal of a case where the state and federal claims are to a significant extent arising out of common events and the Plaintiff has not objected to this forum, remand partially or in whole is inappropriate. Plaintiffs are struck by such an audacious request that enables the Defendants to forum shop not only the case but particular issues.

Respectfully submitted,


Samuel J. Harris (BPR#17392)

P.O. Box 873

Cookeville, TN 38503

(931) 372-7227

John C. Duffy BPR #


Attorneys for Defendants

800 South Gay Street, 1700

P.O. Box 131

Knoxville,TN 37901 423-637-1700

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