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Rayming Chang et al v. the United States of America et al

January 5, 2012

RAYMING CHANG ET AL., PLAINTIFFS,
v.
THE UNITED STATES OF AMERICA ET AL., DEFENDANTS.



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

MEMORANDUM OPINION

In my Second Request for Guidance [#837], I summarized the events that have led to the most recent controversy as follows:

On May 4, 2011 the District of Columbia advised the Special Master that a contractor for [a] company named NC4 had located data that had been entered into what is called the "E-Teams" server during the weekend of September 26-28, 2002, the weekend of the fall IMF meetings during which plaintiffs were arrested. Notice Regarding Fall 2002 IMF JOCC Running Resume Data [#779].

The District reported that:

The NC4 contractor has booted the system, searched for target data and located the data that was entered into the E-Teams server during the Fall 2002 IMF Weekend. The contractor is reasonably confident that all data entered during the weekend has been located and is now accessible on the server.

Id.

That confidence was well placed. The District has now produced that data, a 4700 page document. Its discovery is significant because until May 2011, the parties believed that data produced by a second database system, the Group Ware system, was irretrievably lost, meaning that the document known as the Joint Operations Command Center ("JOCC") Running Resume could not be found. Its loss was, of course, one of the topics assigned for investigation by the Special Master by Judge Sullivan's Order of May 5, 2010. Order Appointing Special Master [#645] at 3. The E-Teams data therefore is the only repository of the contemporaneous entries made by its users during the weekend when plaintiffs were arrested.

Several months later, however, at a July 12, 2011 hearing, the District reported that it was aware of an attempt on February 26, 2003, to delete data from the E-Team server. Since then, Marc A. Bynum, a systems administrator at NC4, has now been deposed and testified that he discovered such an attempt. Deposition of Marc A. Bynum (Aug. 23, 2011) at 15-16.

Plaintiffs have now announced an intention to take discovery and have indicated its scope. See Chang Plaintiffs' Opposition to District Motion to Stay Discovery Regarding JOCC Running Resume Data Destruction at 1 n.1. The District of Columbia, for its part, has now moved that all discovery on this issue be stayed pending the investigation of this matter by the FBI and United States Attorney's Office to whom it has now referred the matter. [#837] at 1-2.

On October 4, 2011, I denied the District's motion to stay. See Memorandum Order [#839]. Since then, the District appealed my order to Judge Sullivan. See District of Columbia's Objections to Order Denying Motion to Stay Discovery Regarding JOCC Running Resume Data Recovery. [#858].

Speaking to my responsibilities as Special Master, the District has requested Judge Sullivan to relieve me of any responsibility to explore the JOCC Running Resume and to have me instead complete my findings of fact only as to the audio and videotapes that are also the subject of Judge Sullivan's May 5, 2010 order. Motion for Partial Reconsideration Regarding September 27, 2011 Minute Order and Motion to Stay or Close Further Proceedings Before the Special Master [#846] passim; Reply to Plaintiffs' Opposition to Motion for Partial Reconsideration Regarding September 27, 2011 Minute Order and Motion to Stay or Close Further Proceedings Before the Special Master [#863] at 9.

For their part, plaintiffs noticed the deposition of the District of Columbia pursuant to Rule 30(b)(6) but the District declined to permit any inquiry about the following topics:

1. Any access, observation, editing, deletion, destruction, tampering, or alteration of the E-Team System, software, and/or data between February 25, 2003, and February 27, 2003, or at any other time between November 1, 2002, and July 30, 2011.

2. All evidence of any editing, deletion, destruction, tampering, or alternation of the E-Team System, software, and/or data, including the "clear evidence that the ETeam's data files had been deleted by a user on February 26," 2003, as stated by ...


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