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Dl, et al v. District of Columbia

May 9, 2011


The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

Memorandum Opinion

This case is before the Court on defendants' Motion for Reconsideration. Mot. Recons., April 11, 2011, ECF No. 233. Having considered the Motion, the Opposition, the Reply, the record in this case, and the relevant law at length, the Court will deny defendants' Motion for the reasons that follow.


Imagine a standup comic who delivers the punch-lines of his jokes first, a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes. That's what document production after trial is like-it defeats the purpose. Yet, the District's Motion would have this Court bless its decision to violate multiple Court orders, ignore the Federal Rules' carefully calibrated discovery apparatus, and produce thousands of responsive e-mails after trial ended. A discovery violation of this exotic magnitude is literally unheard of in this Court, and when-on the first day of trial-the District's plan was revealed, this Court held that the District had waived objections (including privileges) with regard to all of the unproduced e-mail and ordered it to produce them all within one week of the close of trial. Before the Court now is the District's Motion to reconsider that Order. After exploring the relevant aspects of this case's factual background, the Court will explain its reasons for denying the District's Motion.


On April 6, 2011, the lawyers for the District and the plaintiff class gathered at the courthouse for a bench trial. It should have been a good day for all involved. The plaintiff class had been waiting nearly six years for this Court to decide whether they are entitled to injunctive and declaratory relief for the District's failure to provide them with a free appropriate public education as required under the Individuals with Disabilities and Education Act, 20 U.S.C. § 1400 et seq. and other laws. The District, for its part, has often lamented the burden this case has put it under due to its lack of resources and the tremendous amount of work required. And an expeditious and just resolution of cases and controversies is this Court's abiding lodestar. Thus, the first day of trial gave everyone involved something to look forward to. April 6, 2011, though, turned out to be only the beginning of the next outrageous chapter in the ongoing discovery saga that has come to define this case.

Before trial could begin, plaintiffs' counsel asked the Court if he could raise some important preliminary matters. He proceeded to tell the Court that document production from the District was still flooding into his office. Indeed, he said that his office had received thousands of e-mails just days before trial and that the District had indicated that it was going to continue producing thousands of e-mails on a "rolling" basis even after the trial concluded. Such a "document dump" might be legitimately explained if these e-mails were new and thus couldn't have been produced sooner. But plaintiffs' counsel indicated that many were more than two years old. He moved the Court to compel the production of the rest of the e-mails within one week and to hold that the District had waived any objections (including privileges) with regard to the documents.

Defense counsel took the lectern but had little to say in response. First, she noted that she was aware of discovery failures by the District's prior counsel but indicated that since she had taken over, the District had been working hard to meet its discovery obligations and had apprised plaintiffs' counsel of its progress every step of the way. Wanting further explanation, the Court asked why these e-mails were just coming to light now. Defense counsel indicated that they were the result of a "supplemental search" that had yielded tens of thousands of e-mails that had to be reviewed for relevance and privilege. She also said that this process of new searches and review had been "ongoing for months." The Court asked her why she failed to mention this at the pretrial conference. She responded that the District didn't know it was going to fail to complete the review process before trial began and thus saw no need to inform the Court of the ongoing discovery.

The Court asked why the District chose to undertake this process in secret without informing it of what was happening. She responded that the District was understaffed, the discovery was voluminous, and there simply were not enough bodies to process it all before trial. The Court was dissatisfied with that answer and-from the bench-granted the plaintiffs' Motion to Compel production and ordered the District to produce all of its e-mails within one week of the close of trial. The deadline imposed would make any motion by plaintiffs to reopen the trial record to introduce newly discovered evidence more timely. The Court also held that the District had waived privilege and objections with regard to the e-mails yet to be produced. Again, litigating privileges and objections post-trial would, in the Court's view, unreasonably delay any possible effort by plaintiffs to reopen the trial record. The Court memorialized that oral ruling in a written Order. Order, Apr. 7, 2011, ECF No. 232. The District asks this Court to reconsider that Order.

b.The 2008 Motion to Compel

This Court refereed a strikingly similar discovery debacle in this case in 2008. Plaintiffs served their First, Second, and Third Sets of Requests for Production of Documents on December 28, 2005, September 17, 2007, and September 28, 2007, respectively. Opp'n Mot. Recons. Exs. 1--3, Apr. 14, 2011, ECF No. 236. They specifically included e-mail in their request. Opp'n Mot. Recons. Ex. 1 at 2. On February 4, 2008, plaintiffs filed a motion to compel the District to respond to their document requests. Mot. Compel, ECF No. 91. To that date, the District had produced only seventeen e-mails from Part C staff and none from Part B staff concerning activities publicizing Child Find. Id. at 27. On March 6, 2008, one month after plaintiffs filed their Motion to Compel and four days before the District filed their Opposition, the District provided plaintiffs a larger set of e-mails, most of which were dated between December 2006 and November 2007. Reply Mot. Compel 16, ECF No. 101.

On June 27, 2008, the Court granted in part plaintiffs' Motion to Compel production of e-mails and ordered that the District had waived its privilege objections with regard to them. Mem. Op., June 27, 2008, ECF No. 107. The Court noted that "[i]n its discussion of the deliberative process privilege, the District's memorandum in opposition to plaintiffs' motion makes no effort to argue that the District has provided a log sufficient to satisfy its obligations under Rule 26(b)(5)." Mem. Op. 10, ECF No. 107. The Court held that sans a privilege log, the District would not be heard to raise privilege objections. Id. It went on to explain its rejection of several of the District's other objections to plaintiffs' document request and ultimately concluded that "the District's performance of its discovery obligations to date has been completely inadequate."Id. at 15.

Regarding the District's now all-too-familiar strategy of "rolling" document production-which has been its modus operandi since this case's inception-the Court explained that the District had apparently "'decided it would file an incomplete answer and then supplement it whenever it pleased.'" Id. (quoting Association of American Physicians and Surgeons, Inc. v. Clinton, 837 F. Supp. 454, 458 (D.D.C. 1993) (Lamberth, J.)). The Court-in no uncertain terms-"condemned that litigation tactic," emphasizing that it "'w[ould] not tolerate it in future responses in this case.'" Id. (quoting same).

Yet even after being called out in a Court order, the District-its head apparently buried in the sand-remained committed to its corrupt production strategy. That is unsurprising in light of its narrow reading of this Court June 27, 2008, Memorandum Opinion. In its Reply brief, the District says that the sole basis for that Opinion was "the District's failure to provide privilege logs." But that is plainly untrue. The District's failure to provide privilege logs was the basis of the Court's decision to reject the District's objections to document requests on the basis of privilege, but as outlined above, the Court's broader purpose was to disabuse the District of its "rolling" production scheme. Indeed, the discussion of privilege logs only accounts for three pages of the Court's twenty-two page Opinion. Mem. Op. 9--11, ECF No. 107. The rest rejects several of the District's other objections and its general discovery conduct. The District's decision to ignore the bulk of this Court's June 27, 2008, Opinion explains, in part, why it ...

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