SEIZE AND DESTROY: SLED Chief Mark Keel fined $11,300 for discovery abuses in hemp farmer civil suit

DORCHESTER COUNTY, S.C. (QUEEN CITY NEWS) – For the past four months Trent Pendarvis’ legal team has waited to hear how a circuit court judge would rule on allegations they made against the state’s top law enforcer last October.

Pendarvis was arrested by South Carolina Law Enforcement Division agents on Sept. 19, 2019 and charged with illegal cultivation of hemp. While handcuffed and sitting in the back of a patrol car, SLED agents mowed his hemp field down, destroying what Pendarvis believed might’ve been at least a million-dollar crop.

SLED accused the farmer of growing hemp in an unapproved field, although Pendarvis was licensed to grow an allotment of hemp on his family’s Dorchester County farm.

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.

The farmer said another law enforcer told him SLED was headed to his second field in Marion County to destroy the other half of his hemp allotment, but Pendarvis hired Orangeburg attorney Brad Hutto who hired Pee Dee attorney Patrick McLaughlin to head SLED and the SCDA off as they worked to seize the second hemp field.

A Marion County judge ordered SLED and the SCDA to stay off Pendarvis’ Marion County field until Pendarvis could get a day in court to defend himself and challenge SLED’s findings. SLED appealed the judge’s restraining order to the SC Court of Appeals where the case is still pending.

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.

‘INTENTIONAL, WILLFUL AND BAD FAITH CONDUCT’

On Oct. 31, Pendarvis’ attorney, Patrick McLaughlin spent more than an hour laying out his argument he hoped would convince SC Circuit Court Judge Maite Murphy that Chief Mark Keel committed discovery misconduct in Dorchester County.

Keel is a licensed attorney and a member in good standing of the SC Bar Association.

“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. “And quite frankly, it was also meant to mislead the court in several instances.”

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.