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McDowell v. Government of the District of Columbia

February 9, 2006

JUANITA MCDOWELL, PLAINTIFF,
v.
THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, ET AL. DEFENDANTS.



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

MEMORANDUM OPINION

Currently pending and ready for resolution are the following motions: 1) Plaintiff's Renewed Motion to Compel Production of Spreadsheet and PD163s, Incorporating Points and Authorities ("Plains. Renewed MTC 5/18/05"), 2) Plaintiff's Motion for Leave to File Supplement to to [sic] Renewed Motion to Compel Production of Spreadsheet and PD 163s, 3) Plaintiff's Second Motion to Amend Plaintiff's Motion to Compel Production of Spreadsheet Required by this Court's Order Dated January 26, 2005 (Docket #63), Incorporating Points and Authorities (Plains. Sec. MTA 9/8/05") and 4) The Defendants the District of Columbia and Shanita Williams' Motion for a Protective Order and/or Reimbursement of Costs ("Defs. Mot. PO"). For the reasons stated below, plaintiff's first motion will be granted in part and denied in part, plaintiff's second and third motions will be granted, and defendants' motion will be denied.

INTRODUCTION

Discovery in this case can be likened to a performance of the Theater of the Absurd. It is time, once and for all, for the curtain to drop on this ridiculous production, or rather, non- production, all too reminiscent of Waiting for Godot.*fn1

SELECT CHRONOLOGY OF EVENTS

On November 16, 2002, plaintiff propounded document requests seeking, inter alia, for the period from January 1, 1994 to the present, "[e]ach and every PD 163 . . . authored by, or describing an encounter with a civilian in which any of individual defendants or any member of 6D vice or any of Efraim Soto, Lonnie Moses, or Anthony McGee or Homer Littlejohn or Jonathan Jackson and any other District of Columbia employee on defendants' witness list and any of the individuals named on Attachment A [Ofc. S.D. Siegel, Ofc. G.M. Gulich and Officer Anthony Allen] was present or participated." Plaintiff's Motion to Compel Defendant District of Columbia to Respond to Plaintiff's Document Production Requests, Incorporated Points and Authorities ("Plains. MTC 2/3/03"), Exhibit 2 at 5, 15-16. On February 3, 2003, plaintiff filed a motion to compel the production of the documents.

On August 19, 2003, plaintiff again propounded discovery requests, this time seeking copies of defendants' databases to learn whether CJIS*fn2 could generate a spreadsheet or index of arrest events by officer and arrest number. Plaintiff's Motion to Compel Defendant District of Columbia to Respond to Plaintiff's Computer Interrogatories and Document Production Requests; and Motion to Produce Witnesses for Deposition; and Motion to Extend Discovery Period, Incorporating Points and Authorities, Exhibit 1 at 1. On October 13, 2003, plaintiff filed a motion to compel the production of the databases.

On November 22, 2004, plaintiff again moved to compel the production of the PD 163's first identified in the November 16, 2002 request. Plaintiff's Motion to Compel Production of PD 163s and Related Documents, Incorporating Points and Authorities ("Plains. MTC 11/22/04") at 1-2. This time, however, plaintiff limited the scope of the request to those arrests made between November 16, 1999 and the present. Id. at 6.

On January 26, 2005, I granted plaintiff's November 22, 2004 motion to compel and ordered production within ten days of the date of my order. Order ("Order 1/26/05") at 1. I also directed defendants to keep track of the time they spent complying with my order. Id. I did this because, although plaintiff argued that defendants could easily comply with the order, defendants argued that compliance would prove extremely burdensome in that it would be costly and require an expenditure of manpower resources that they simply did not have at their ready disposal. Id.

On February 9, 2005, defendants moved me for reconsideration of my January 26, 2005 order. Without moving to stay the order, defendants also moved for an extension of time within which to comply with the order. Motion to Reconsider the Court's Order and/or to Enlarge the Time to Comply with the Court's Discovery Order at 1. One day later, on February 10, 2005, defendants again moved for an extension of time within which to comply with my January 26, 2005 order.

On February 23, 2005, Judge Roberts held a status hearing. At the hearing, the court learned that, although plaintiff had received a spreadsheet listing arrest events, plaintiff had not yet received the corresponding PD 163's. Plains. Sec. MTA 9/8/05, Exhibit 2 ("Tr. 2/23/05") at 4. The court also learned that defendants had begun producing PD 163's corresponding to the arrests made by officers in the 6th District, but for a much greater time period than that specified in plaintiff's request. Id. at 19. Defendants explained that they had done so in response to an earlier order of mine, which directed defendants to let me know how many PD 163's were generated within a six month period. Id. at 20. Defendants further indicated that they also had proceeded to provide plaintiff with the corresponding PD 163's even though they were not directed to do so. Id. at 21.

Later in the hearing, defendants conceded that, because they had not filed a motion to stay my order of January 26, 2005 and because in fact that order was still in effect, requiring compliance by February 9, 2005, defendants were technically in violation of the order. Id. at 25. As a result, and in order to assist my resolution of the pending discovery issues, Judge Roberts ordered both parties to make a filing with the court by March 14, 2005 indicating which PD 163's had already been produced and which ones had not. Id. at 28.

On March 14, 2005, defendants moved for an extension of time within which to submit their discovery report. That same day, plaintiff moved to compel compliance with my order of January 26, 2005.

On May 11, 2005, I denied defendants' motions for extensions of time. Order ("Order 5/11/05") at 2-3. I also indicated that I would not entertain any further hardship motions relating to my order of January 26, 2005. Id. at 2. Finally, I ordered the parties to submit a joint status report and indicated that defendants could illustrate therein, by an affidavit from someone in defendants' IT department, why compliance with my previous order was unduly burdensome. Id.

On May 16, 2005, in response to my order of May 11, 2005, the parties submitted a joint status report.

On May 18, 2005, plaintiff again filed a motion to compel. Plaintiff supplemented the motion on the same day. In the motion, plaintiff identified those PD 163's that had not yet been produced. Plains. Renewed MTC 5/18/05 at 8. Plaintiff also identified the following problems with defendant's production to date: 1) the spreadsheet was not in a format that made it possible for plaintiff to manipulate the data, 2) the spreadsheet did not contain a complete list of all arrest events for the designated officers for the specified production period, 3) the spreadsheet neither captured arrest events where the designated officers assisted in the arrest nor were the corresponding PD 163's provided, and 4) certain PD 163's authored by Homer Littlejohn within the specified production period were either not listed on the spreadsheet or, if listed, were not produced. Id. at 6-9.

On May 19, 2005, Judge Roberts held a status hearing and set another hearing for June 28, 2005.

At the June 28, 2005 hearing, Judge Roberts ordered the parties to file a joint report on the status of discovery by August 1, 2005.

On August 1, 2005, the parties filed a joint report. In their report, defendants indicated that all PD 163's would be turned over to plaintiff by August 5, 2005, thus satisfying their discovery obligations. The District of Columbia and Shanita Williams' and Plaintiff Juanita McDowell's Joint Discovery Status Report ("Jt. Rpt. 8/1/05") at 1-2.

On August 8, 2005, by minute entry, the parties were ordered to file another joint report, this time by August 19, 2005.

On August 18, 2005, the parties filed their joint report. Defendants once again insisted that they had complied with all outstanding discovery requests for PD 163's, but plaintiff indicated both that the spreadsheet was incomplete and that not all PD 163's had been turned over. The District of Columbia and Shanita Williams, and Plaintiff Juanita McDowell's Joint Discovery Status Report ("Jt. Rpt. 8/18/05") at 1-2.

On September 8, 2005, plaintiff filed a renewed motion to compel. Again, plaintiff complained that defendants' most recent spreadsheet failed to capture all the arrest events requested by plaintiff and that defendants had still not produced all the corresponding PD 163's. Plains. Sec. MTA 9/8/05 at 3.

On October 3, 2005, I held an evidentiary hearing, the results of which will be discussed in greater detail below.

On December 30, 2005, plaintiff filed yet another memorandum detailing the on-going discovery disputes.

THE PROBLEM

In a nutshell, it is quite clear from the painstakingly slow progression of discovery in this case that defendants' ability to retrieve the information sought by plaintiff is indeed as inadequate as plaintiff has repeatedly alleged. The discussion that follows reviews in detail the evidence that supports this conclusion followed by my proposed resolution of all outstanding discovery issues.

Throughout the course of discovery, plaintiff has had two primary complaints. First, that the spreadsheet has never captured all the data that she seeks and second, that defendants have failed to produce the corresponding PD 163's. In fact, even defendants' most recent spreadsheet failed to list certain arrest events that plaintiff knew existed by virtue of the fact that plaintiff already had in her possession the corresponding PD 163's.*fn3

I. The Spreadsheet

A. Running the "Other Officer" Query in CJIS

Since the beginning of discovery in this case, plaintiff has sought to query CJIS for information about those arrests in which the individual named officers, while not the arresting officer, nonetheless participated in some fashion in the arrest. While defendants have repeatedly acknowledged that CJIS contains an "other officer" field, defendants only recently conceded that a query of this field can actually be performed.

On May 16, 2005, in a signed, sworn declaration, Thelma James ("James"), then-Acting-Manager of the Applications Support Branch of the Metropolitan Police Department ("MPD"), stated the following: "Any information identified by the other officers field, or multiple officers involved with an arrest is not retained by the CJIS system. This information will have to be obtained from the District of Columbia Superior Court." The Defendants District of Columbia and Shanita Williams and Plaintiff Junita McDowell's Report Regarding Discovery ("Jt. Rpt. 5/16/05"), Exhibit 1 at 2.

Several months later, on October 22, 2004, plaintiff deposed Sheila Tomalea Gantt ("Gantt"), an employee with the CJIS Data Conversion section of the Records Division of MPD. Plains. Renewed MTC 5/18/05, Exhibit 13 at 5. Gantt testified that the Data Conversion section is responsible for making sure that the information contained on the PD-163's has been accurately entered into the CJIS system by the booking officers. Id. at 5-6. Although Gantt's testified briefly about the "other officer" category in CJIS, her testimony on that topic was not on point due to the nature of the questions posed. First, plaintiff asked Gantt a series of questions about whether or not a query can be done of all the arrests in which a particular officer may have been involved. Gantt's answer, however, suggested that Gantt believed the question concerned only those incidents in which the officer at issue was actually the arresting officer:

Q: Well, let's say I was looking for all the arrests that Officer John Smith was involved in.

A: Uh-huh.

Q: Either, you know, in this screen that we just talked about, as an arresting officer or as the papering officer, can I put a query in CJIS that would tell me all of the arrests that he had anything to do with?

A: Yes, the arrests.

Q: Which field would you - -

A: You need the arresting officer's badge number and the dates that you are interested in.

Q: Uh-huh.

A: Like with a query from what - - I mean, 2000 up to now, if you wanted that information. If the officer has, of course, entered his - - this officer's name has been correctly entered into CJIS, it would pull all the arrests for that badge number. It's querying the badge number, actually.

Id. at 82-83.

A similarly inconclusive result was reached by defendants' counsel:

Q: So do you have specific information and knowledge that you could go back and search CJIS for other officers making arrests in the year 2000, or ...


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