The opinion of the court was delivered by: Facciola, United States Magistrate Judge
This case was referred to me by Judge Friedman for the resolution of
discovery disputes pursuant to LCvR 72.2(a). I now resolve both
Plaintiffs' Motion to Compel Defendants District of Columbia and Arelene
Ackerman to Pay Expert Witness and Attorney's Fees Or, Alternatively, For
An Order Directing Defendants to Show Cause Why They Should Not Be Held
In Contempt ("Plains. Mot.") as well as Plaintiffs' Supplemental Request
for Legal Fees and Expenses ("Plains. Supp. Mot.").
Plaintiffs, Jamel Whatley and his guardian, Esther Williams, bring this
action against the District of Columbia ("the District") and several
current and former employees of the District in their official and
individual capacities. Williams bears sole responsibility for Whatley's
health and welfare, including his education. At the time plaintiffs filed
the complaint in December of 1998, Whatley was a 10 year old student in
the District of Columbia Public School System ("DCPS") enrolled at
Ketcham Elementary School ("Ketcham"). Though old enough for the fifth
grade, Whatley remained in the third grade. Throughout his schooling,
Whatley has experienced academic difficulties and has had significant
difficulty learning to read. As a result, Ketcham suggested Whatley
repeat the first grade. Complaint ("Compl.") ¶ 10. However, Whatley's
academic performance did not improve and he has continued to struggle
with his educational pursuits. Id.
Despite Whatley's overt academic difficulties, Williams alleges that
DCPS neither recommended that Whatley be evaluated for possible special
education nor referred Whatley for educational assessments that could
have initiated the process of identifying him as disabled and,
therefore, in need of special education. Compl. ¶ 11. In 1996, Williams
completed DCPS Form 6, which begins the evaluation and placement process
for children who may be disabled and in need of special education.
According to Williams, an educational assessment was conducted by DCPS
and it indicated that Whatley suffers from a learning disorder and should
be considered for special education. Compl. ¶ 13.
By my Order of October 26, 2001, I allowed plaintiffs to file a
supplemental affidavit of its costs and expenses in obtaining information
from August 9, 2000, up to the present time. The requested affidavit was
filed on November 7, 2001, and defendant District of Columbia
subsequently responded. First, the District concedes that it owes
plaintiffs' counsel $4,399.50. However, the District's arithmetic is
incorrect. The District's calculation of the final award is based on the
plaintiff's prior claim of $9,449.50, not the revised amount of $9,746.28. Plains. Supp. Motion at 1. From this number, the District
subtracts $200, which plaintiffs inadvertently failed to do and also
excluded $46.78 in other expenses. Opposition to Plaintiffs' Supplemental
Request For Legal Fees and Expenses ("Defs. Opp."). Therefore, the
District's final award calculation is off by $246.78 and its concession
will be adjusted upward to $4,646.78.*fn1 Second, because the District
was not involved with negotiating the protective order for Armstrong, the
District asserts that it is not required to pay for the fees resulting
from that negotiation. Id. Lastly, the District claims it is not its
financial responsibility to pay for time Mr. Szymkowicz spent
familiarizing himself with the case. I will address each objection in
In her supplemental affidavit, Ms. Savit requested an additional
payment of $200 for expenses incurred in connection with the original
motion to compel discovery, which expenses were unintentionally omitted
from plaintiffs initial request. See Plains. Supp. Mot. at 4.
The District waxes wroth and claims a "waiver" because of the mistake.
First, a waiver is an intentional relinquishment of a known right.
BLACK'S LAW DICTIONARY 1574 (7TH ed. 1999). A mistake is "some
unintentional act, omission, or error." Id. at 1017. The words are,
therefore, antonyms and thus a waiver cannot possibly arise from a
mistake. Second, not too long ago, there was a time when opposing
counsel, upon learning of a mistake by his opponent, would not object to
its correction as a matter of simple courtesy. It is a sad comment on the
lack of civility and professionalism of the Bar that such simple courtesy
is disappearing and courts are burdened with $200 objections. That is
about what this objection is worth. De minimis non curat lex. Men not
being angels, I shall allow the correction. Speaking of angels, they
would weep over what is happening to the practice of law.
The relevance of Ms. Armstrong's firing to the case before me is that
questions regarding her employment were raised by plaintiffs'
interrogatory Number 5. Specifically, plaintiffs demanded to know whether
Ms. Armstrong was still employed by DCPS, and if not, what prompted her
termination. Corporation Counsel, at the time still representing Ms.
Armstrong, initially objected to this interrogatory, asserting a