Barth files court action over EB-5 records

Minnehaha County Democratic Party chair Jeff Barth filed legal action about South Dakota's EB-5 program.

Barth is also an elected county commissioner. A preliminary court document filed Monday says Barth is acting "personally and in his capacity as sitting County Commissioner," but he says the county "has nothing to do with it."

So far Barth hasn't filed a legal complaint, though a preliminary document alleges that former Gov. Mike Rounds, former South Dakota Board of Regents director Tad Perry and Aberdeen attorney Jeffrey Sveen "knew of, should have known of, or directly engaged in" fraud related to the privatization of South Dakota's EB-5 program.

Not a target of the lawsuit is Joop Bollen, South Dakota's former EB-5 chief who led the program both as a state employee and then later as the head of the private company SDRC Inc., which is also not named. Bollen is mentioned as a "witness," along with former Board of Regents chair Harvey Jewett, current Regents director Jack Warner, Northern State University president James Smith, NSU attorney John Meyer, Regents counsel James Shekleton and Gov. Dennis Daugaard.

Barth declined to say why Bollen wasn't a subject of the suit.

The thrust of Barth's initial filing is seeking a court order to preserve all "physical evidence" and "related material regarding the South Dakota Regional Center."

"Petitioners do require adequate assurance that relevant information is not being destroyed," Barth writes in his filing.

The document is a motion for "pre-trial discovery" of documents under Rule 27 of the Federal Rules of Civil Procedure.

This is generally limited to preserving testimony, and not "merely to discover facts and witnesses in order to draft a complaint or evaluate the merits of the case," attorney Curtis Quay wrote in an analysis (PDF). But in some cases Rule 27 discovery has been extended by the courts, and Barth's lawsuits mentions several cases where that happens.

(In fact, Barth's filing actually replicates an entire paragraph from page four of Quay's analysis without attribution on page 15 of the filing. There are a few minor changes -- changing "Rule 27" to "Federal Rule 27" in one case, changing "Rule 27" to "it" in another and dropping a footnote. Not being an attorney, I have no idea whether that's standard or questionable in legal filings.)

As an alternative to documents being provided to him, Barth says the court could take possession of the documents instead.

A senior aide to Rounds, who is currently running for U.S. Senate, on Twitter called Barth's action a "frivolous lawsuit" that's "playing politics with the judicial system."

Barth is represented by Richard Engels, a former Democratic state lawmaker. Though he's the only named petitioner, the filing alludes to "several other entities and persons" who are "considering joining this contemplated action."