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May 6, 2003


The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge


This case was initially referred to me by Judge Leon for discovery disputes pursuant to LCvR 72.2(a), and has since been reassigned to Judge Collyer. Currently ripe for resolution are defendant's Motion For Protective Order and plaintiff's Cross Motion To Compel Discovery.


Plaintiff, Derek Waters ("Waters"), was appointed a recruit officer in the United States Capitol Police ("USCP") on February 25, 2000. Complaint, ¶ 4. As a recruit officer, Waters was required to complete a ten week training period at the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. Id. During the training period, Waters overheard Adam Weiss ("Weiss"), Vice President of Recruit Class #121, make racial comments while viewing a boxing match on television. Id. Following the boxing match incident, Waters and other recruit officers complained to Stanley Buchanan ("Buchanan"), the elected President of Recruit Class #121, about Weiss' comments. Allegedly, no action was taken as a result of those complaints. Complaint, ¶ 5.

Upon returning to Washington, D.C., Recruit Class #121 was required to take a written examination prior to becoming sworn non-probationary officers. On June 30, 2000, the examination was administered by the Training Division officer in charge, Officer Millham ("Millham"). The examination had to be completed in an hour and the examinees had to stay in the testing room for at least one half hour. When they finished the exam, they were supposed to leave the test booklet on the desk and exit the room with the answer sheet. Id., ¶ 6; Defendant's Opposition to Plaintiff's Motion to Compel Discovery ("D. Opp.") at 3, Exhibit C. While standing in line, Waters changed one of his answers. Complaint, ¶ 6. Subsequently, Weiss and Buchanan accused Waters of cheating on the exam. Id., ¶ 7.

An investigation of the alleged cheating was conducted by Sergeant Burton ("Burton") of the USCP Training Division. Lieutenant Reynolds, who supervised the investigation, presided over many of Burton's interviews of recruits who had personal knowledge of the events. Consideration of those interviews as well as Waters' admission that he had left the examination room with a pencil and changed one of his answers before turning in his answer sheet led Burton to conclude that Waters had engaged in conduct unbecoming an officer. D. Opp. at 3, Exhibit D (Burton's Investigative Report). Waters, however, denied the charge and on July 20, 2000, he was given a polygraph examination in order to determine whether he had an intent to cheat. Complaint, ¶ 9. The polygraph did not vindicate Waters of the cheating allegation and the Head of the Training Division, Inspector Larry Thompson ("Thompson"), an African-American, recommended that Waters be terminated from the training program. Id. As a result, Waters alleged discriminatory conduct in connection with his termination. In turn, Thompson reported that allegation to Chief James Varey ("Varey"). Id., ¶ 10. On July 26, 2000, Varey requested that the Internal Affairs Division ("IAD") conduct an investigation into Waters' allegations of racial discrimination. Id., ¶ 11.

The IAD investigation was led by Sergeant Tonya Robinson ("Robinson"), an African-American female. Robinson produced a fifty-two page report based on 43 tape recorded interviews of witnesses, a review of Burton's investigation report, and Waters' polygraph. She concluded that her investigation "did not reveal a sufficient level of proof to substantiate that [Waters] was racially discriminated against by members of the Department," although it did reveal that some misconduct had occurred. Id., ¶ 15. On January 3, 2001, Varey sent Waters a letter terminating his employment. Id., ¶ 17.


The Dispute

The first dispute between the parties turns on plaintiff's insistence that the defendant identify by name and race the members of the defendant's work force and the employees terminated because of a polygraph examination or otherwise within a period of time before and after plaintiff's termination. He also seeks prior complaints of race discrimination against the defendant during that same period of time.

Defendant resists providing this information on the ground that the only discoverable information must relate to situations identical to his own, i.e., situations in which a recruit or probationary officer was fired for dishonesty by Varey, the same man who fired him. Under this theory, neither statistical data about the composition of the work force nor personal information that fails to meet the defendant's requirement that the situations be nearly identical to plaintiff's would be discoverable. Defendant also insists the confidentiality provisions of the Congressional Accountability Act bar disclosure of prior complaints of discrimination unless those complaints are permitted to be disclosed by that Act.

The second dispute arises from the defendant's claims that handwritten notes of investigators involved in investigating whether plaintiff cheated on the exam and plaintiff's claim that his termination was based on his race are protected from disclosure by the deliberative process and law enforcement privileges.

This Opinion

I begin by parsing the disputed materials into various categories and then explaining why the defendant cannot limit discovery in the way it proposes. I will then require the defendant to produce more information than it has. I hasten to add, however, that I appreciate that disclosure of the names of those persons who were terminated or who took polygraph examinations would invade their privacy in the most obvious way. I, therefore, have structured the additional requirements into two stages. First, the defendant will be required to provide the information I am requiring without identifying the persons who, for example, were terminated or who took a polygraph. Whether plaintiff will be able to secure any additional information and the pertinent documents*fn1 will be a function of whether either the termination or the polygraph examination occurred in a situation similar enough to his situation such that plaintiff's need for additional information to make out his prima facie case or prepare to meet an anticipated defense trumps the legitimate interest other persons may have in the continued secrecy of their personal information.

I appreciate that there is a protective order in place, but we are dealing with the privacy of the persons who were terminated or who took polygraph exams. Therefore, I am reluctant to deem the defendant to be capable of waiving whatever privacy rights these individuals could claim.*fn2 I intend to protect those rights and will not order any greater discovery than I already have unless plaintiff establishes a need for additional information.

I accept the defendant's argument that the Congressional Accountability Act precludes disclosure of complaints of discrimination other than those filed in court or made public by that Act. Hence, the privacy of the complainants and of the persons accused by them will be preserved as Congress has required.

Finally, I will reserve final decision on the applicability of the privileges the defendant claims until I see the documents claimed to be privileged.


The Categories of Discovery Sought

1. Comparative data

The disputed information can be best described as either statistical or comparative.

2. Workforce data

Plaintiff first seeks a "racial snapshot" of the present composition of the USCP workforce by demanding to know the name of each person who works for the USCP in a law enforcement capacity, his or her race, date of hire, current position and grade. Int.*fn3 2. Defendant has provided this information concerning 65 persons named in the defendant's initial disclosures and plaintiff's fellow recruits, but balks at providing anything more.

3. Termination data

Plaintiff seeks the race, position and identity of each person terminated since January 1, 1996*fn4, for misconduct. The defendant produced this information as to police officers still within their probationary period and recruit officers who were terminated or resigned in lieu of termination since May 10, 2000, the date Varey became Chief of Police. As a result, the plaintiff did not get information concerning the resignations of two non-probationary officers and two probationary officers. Only one, a non-probationary officer, faced honesty-related charges.

4. Polygraph examination data

Plaintiff seeks the names of all employees who, since January 1, 1996, were ordered to submit to polygraph examinations in the investigation of their alleged misconduct. Plaintiff also seeks the race of these employees, the ...

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