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Bolger v. Dist. of Columbia

March 17, 2008

ELIZABETH BOLGER, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

This matter is before the Court on plaintiffs' motion for sanctions and related relief for discovery abuses perpetrated by the District of Columbia through its employees and attorneys. Plaintiffs argue that the District violated two Orders of this Court in failing to produce responsive documents in a timely manner. The District admits that it has erred on several occasions throughout the discovery process but argues that plaintiffs' requested relief is unwarranted. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will grant in part and deny in part plaintiffs' motion.

BACKGROUND

For context, the Court provides a brief summary of the facts underlying this litigation, as drawn from plaintiffs' Second Amended Complaint ("Second Am. Compl."). On April 20, 2002, plaintiffs were among the thousands of protesters who participated in mass demonstrations during the spring meetings of the International Monetary Fund and the World Bank in Washington, D.C. Second Am. Compl. at 5. Plaintiffs were dressed in black, a color that law enforcement officials associate with supporters of Anarchism. Id. A member of plaintiffs' group had a key card that permitted weekend access to an indoor parking garage located at 1725 K Street, N.W. Id. at 11 ¶ 28. Plaintiffs entered the garage by swiping the key card and parked the van that they were using. Id. at 11-12 ¶¶ 29-30. After the demonstration ended, plaintiffs returned to the garage to eat food that they had previously prepared. Id. at 12 ¶ 31.

While plaintiffs were in the garage, law enforcement officers approached them with their weapons drawn. Id. at 12 ¶ 35. The officers ordered plaintiffs out of the garage, searched their persons and possessions, and searched the van without consent. Id. at 12-13 ¶¶ 36-37. In addition, the officers questioned plaintiffs about their political activities, reviewed flyers and political material, and recorded with video equipment images of political patches and slogans on plaintiffs' clothing. Id. at 13 ¶¶ 38-39. MPD officers arrested plaintiffs for unlawful entry, but charges against plaintiffs were not pursued. Thus, the D.C. Superior Court eventually ordered the expungement and sealing of plaintiffs' arrest records. Id. at 6-9 ¶¶ 1-11. On April 21, 2003, plaintiffs initiated this action alleging false arrest and imprisonment and civil conspiracy.

Plaintiffs now "move for discovery sanctions for the District of Columbia's flagrant abuse of the discovery process and failure to comply with this Court's discovery orders." Pls.' Mot. at 1. As an example, plaintiffs first point to the District's belated disclosure of the Command Center running resume -- a contemporaneous "narrative description in chronological order of all essential police operational activities, public events, and any other pertinent information related to the event for which activation of the [Command Information Center] occurred." Pls.' Reply Ex. 1 at 82-83. Because a Command Center was set up in anticipation of the April 2002 demonstrations, plaintiffs propounded an early document request in December 2003, which was broad enough to encompass the running resume. Plaintiffs requested "all documents, records and reports related to the arrests of plaintiffs at issue in this litigation regardless of whether such records or reports are categorized as arrest records, intelligence information or any other nomenclature used by law enforcement." Pls.' Ex. 5 at 4. The District failed to produce any such documents, claiming that the only responsive documents were the arrest records held by the D.C. Superior Court.

Plaintiffs then specifically requested production of the Command Center's April 20, 2002 running resume in their first set of requests for production. Specifically, plaintiffs sought "all summaries, logs, running resumes, chronologies or other documents that reflect or document the activities of anarchists or persons perceived to be anarchists in connection with the April, 2002 protests." Pls.' Ex. 6, Request No. 24. Again, although plaintiffs insisted that running resumes were created for all mass demonstrations, the District failed to produce any running resumes in response to plaintiffs' request.

After plaintiffs initiated contact with this Court regarding the District's alleged failure to search for and produce responsive documents, the Court held a discovery conference on February 15, 2006. On that same day, the Court ordered the District to "provide plaintiffs with supplemental responses to requests for production of documents and other materials by not later than March 31, 2006." February 15, 2006 Minute Order. On March 31, the District provided its supplementary responses to plaintiffs' request for running resumes, chronologies, or logs of the April 2002 events, stating that "the District has no such documents in its custody or control." Pls.' Ex. 7 at 22-23. In a letter attached to the production, the District's counsel stated as follows: "You are alerted that the production does not include running logs from the Command Centers because no such documents were created during the April 2002 protest." Pls.' Reply Ex. 3 at 1.

Plaintiffs continued to insist that a running resume was created and that the District was not adequately searching its collective knowledge to answer plaintiffs' discovery requests. The Court then issued another order requiring the District to provide, by not later than July 31, 2006, "any supplemental response to plaintiffs' request for production of [Metropolitan Police Department] Command Center logs from April 20, 2002." Docket No. 80. In response, the District continued to deny that any such running resume existed. Pls.' Ex. 20 at 10.

After almost four years of litigation and three-and-a-half years of discovery, the District changed its tune and finally produced a heavily redacted version of the April 20, 2002 running resume. Pls.' Mot. at 4. The production was precipitated by an upcoming deposition of Sergeant Douglas Jones ("Jones"), a deponent who would attest to the Command Center operations in April 2002 and to whether a running resume was created. On March 23, 2007, the business day prior to that deposition -- and seven days before the then-scheduled close of discovery -- the document was produced. As plaintiffs rightfully point out, if they had not persisted in their repeated efforts to obtain the running resume, the District may never have disclosed this important document.

As another example of the District's improper conduct, plaintiffs point to the District's belated disclosure of individuals who were on the scene in April 2002. On May 6, 2005, the District provided sworn discovery responses to plaintiffs' interrogatories and stated that the only law enforcement officers on the scene were eleven uniformed MPD officers and two officers from the United States Secret Service, Uniform Division. Pls.' Ex. 7 at 9. Following the discovery conference with the Court, the Court's February 15, 2006 Order required the District to produce supplementary responses to constitute a full and accurate disclosure. Feb. 15, 2006 Minute Order. On March 9, 2006, the District added Jeff Cadle ("Cadle") as an additional uniformed officer on the scene, but indicated that no one else had been identified. Pls.' Ex. 3 at 6. Interestingly, Cadle was more than just another officer at the scene. On the day of the protest, he had been assigned to take statements and notes related to the arrests of plaintiffs. Pls.' Mot. at 10. Yet he was not identified and disclosed until almost a year after the District's initial discovery response. Plaintiffs contend that the addition of Cadle was again precipitated by their own efforts when they saw his signature on relevant records at the D.C. Superior Court. Pls.' Reply at 14. But while Cadle's notes were not produced until July 31, 2006, he stated in his November 2006 deposition that he had produced his notes to District counsel "about a year and a half ago, about two years" earlier. Pls.' Ex. 10 at 46.

Addressing plaintiffs' concern that the District was not being forthright about who was at the scene, this Court's July 11, 2006 Order required as follows:

defendants shall, by not later than July 31, 2006, respond in writing to all written discovery requests for information regarding the identification of [Metropolitan Police Department ("MPD")] or other law-enforcement officers who were present at the location where plaintiffs were arrested on April 20, 2002, and defendants shall make all reasonable efforts to identify such officers through, among other things, inquiries directed to those officers known to have been on the scene as well as inquiries directed to officials in the MPD's command structure (including the intelligence unit and all other relevant divisions or sections of the MPD) who would have knowledge about the identities of law-enforcement officers who were present.

Docket No. 80. On August 22, 2006, the District once again denied the presence of any FBI agents, but indicated that an additional twenty MPD officers were on the scene. Pls.' Ex. 4 at 6-7. When plaintiffs eventually obtained the running resume in March 2007, however, it clearly ...


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