MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
During
discovery in these cases consolidated for that purpose,
Plaintiffs Joseph Johnson and Ashton Wilkins have attempted
to subpoena portions of certain documents belonging to the
U.S. Attorney's Office for the District of Columbia
(“USAO”), which is not a party to these actions.
USAO opposes the disclosure of this information. Defendants,
the District of Columbia and five Metropolitan Police
Department (“MPD”) officers, [1] have not taken a
position. Upon consideration of Plaintiffs' and
USAO's letter briefing, the relevant legal authorities,
and the record as a whole, the Court DENIES
Plaintiffs' request for this disclosure.
I.
BACKGROUND
The
Court shall briefly summarize the allegations in the
respective First Amended Complaints that are pertinent to
Plaintiffs' request. On March 8, 2016, Plaintiffs were
among a group of people gathered recreationally in the
Gallery Place area of Washington, DC. See 1st Am.
Compl. ¶ 9, Johnson v. District of Columbia,
No. 17-cv-883 (D.D.C.), ECF No. 13 (“Johnson
FAC”); 1st Am. Compl. ¶ 10, Wilkins v.
District of Columbia, No. 17-cv-884 (D.D.C.), ECF No. 11
(“Wilkins FAC”). A “dispute”
between two of the people resulted in MPD
intervention.[2]Johnson FAC ¶¶ 11, 12;
Wilkins FAC ¶¶ 12, 13. The respective
First Amended Complaints are somewhat ambiguous as to the
precise sequence of the following events, but the Court
records them as best it can decipher. The MPD officers
allegedly “savagely hit and sprayed with pepper spray
or mace or some other substance” each of the
Plaintiffs. Johnson FAC ¶ 13; Wilkins
FAC ¶ 14. When Plaintiffs objected to the way MPD
officers were “manhandling and assaulting” others
in the group, MPD officers allegedly attacked Plaintiffs,
which appears to be an attack subsequent to the initial
attack described above. Johnson FAC ¶¶ 15,
16, 57, 58; Wilkins FAC ¶¶ 16, 18-20, 65,
66. At some point during the incident, each Plaintiff was
arrested on the charge of assaulting a police officer
(“APO”). See Johnson FAC ¶ 27;
Wilkins FAC ¶ 34.
One of
the officers, Defendant Owais Akhtar, allegedly “swore
out under oath a false statement” that, inter
alia, Plaintiff Johnson had pushed and punched another
of the officers, and that Plaintiff Wilkins had swung at and
“assumed a fighting stance” towards one or more
of the officers. Johnson FAC ¶ 22;
Wilkins FAC ¶ 26. USAO brought APO charges
against each Plaintiff in separate criminal cases in D.C.
Superior Court, but eventually dismissed both cases.
Plaintiffs later brought their respective civil suits against
the District of Columbia and five MPD officers under 42
U.S.C. § 1983 and the common law, alleging assault,
false arrest, malicious prosecution, municipal liability, and
various constitutional violations. The municipal liability
claims in each case were later voluntarily dismissed.
During
discovery, Plaintiffs submitted a subpoena to USAO to obtain
certain materials prepared in conjunction with the criminal
charges against them. After negotiation narrowed the scope of
the subpoena and resulted in some production, Plaintiffs
indicated, in an e-mail agreed upon with Defendants and USAO,
that Plaintiffs were unable to prevail as to 1) USAO's
“papering notes from the prosecution of the underlying
criminal case[s], ” and 2) “documents or
information as to why the charges were ultimately voluntarily
dismissed by the USAO.” The Court instructed USAO and
Plaintiffs to submit successive letter briefs regarding
arguments that they had outlined in the initial e-mail. Min.
Order of May 7, 2018. Each brief was to include 1-2 cases
regarding each of the two issues. Id. The Court then
instructed USAO to file a reply letter brief addressing
certain of the topics raised in prior briefing. Min. Order of
May 17, 2018. Ultimately, the Court accepted USAO's offer
to submit the documents at issue ex parte and under
seal for the Court's in camera review. 1st Min.
Order of June 4, 2018; see also Min. Orders of June
13, 2018, and June 19, 2018.
Having
reviewed the parties' letter briefing, as well as the
documents submitted ex parte, the issues raised are
ripe for the Court's decision.
II.
DISCUSSION
At the
threshold, the Court observes that letter briefing
crystallized the precise documents and portions thereof that
remain at issue: 1) the typed factual portion of the
“screener sheet” in each case that was prepared
by the Assistant United States Attorney (“AUSA”)
who initially decided to prosecute rather than “no
paper” these cases; 2) the typed factual portion of the
“papering form” in each case that another AUSA
subsequently prepared; and 3) the handwritten portion of the
case jacket in each case that recorded the decision to
dismiss the cases as well as the rationale. The relevant
handwritten entry on the case jacket consists of five lines
of text. These portions of the respective documents are the
same in each case.[3]
Plaintiffs
seek these materials to be able to support their claim that
Defendant Akhtar fabricated allegations to support the APO
charges against Plaintiffs. Relatedly, Plaintiffs claim that
he omitted from his representations to USAO the aspects of
purported police misconduct that are alleged in the First
Amended Complaints. Plaintiffs also indicate that they may
use whatever material they can obtain to impeach Defendant
Akhtar's testimony at trial.
The
Court has reviewed the factual portions of the screener
sheets and the papering forms, as well as the handwritten
entries on the case jackets.[4] If criminal proceedings had
continued, and the prosecution had called one or more of the
MPD officers to testify, none of the material contained in
these three portions of documents would be subject to
disclosure under the Jencks Act, as presently embodied in
Federal Rule of Criminal Procedure 26.2. There is no
indication, in particular, that any information therein is a
witness “statement, ” consisting of a
“substantially verbatim, contemporaneously recorded
recital of the witness's oral statement that is contained
in any recording or any transcription of a recording.”
Fed. R. Crim. P. 26.2(f)(2). Moreover, the AUSAs did not
express any opinion as to the credibility of the officers
involved in the incident.
Plaintiffs
have, or should have access to, witnesses of the incident,
footage from cameras at the scene, MPD's police reports,
and associated use of force incident report(s)
(“UFIRs”). It is these kinds of sources that USAO
would have relied upon, and did rely upon, in reaching its
determination whether to go forward and prosecute the
cases.[5] It is also not disputed that the cases
were “nolle prossed” by USAO. Evidence of
USAO's decisionmaking process in “nolle
prossing” the cases would not be admissible at trial,
including because the jury in the first instance can be
provided with the same evidence that USAO considered and
would make their own determination based on that evidence.
As for
legal authority, the Court finds that the factual portions of
the screener sheets and papering forms are protected from
disclosure by the attorney work product doctrine. AUSAs
prepared these materials while they were actively in
anticipation of litigation, namely the prosecution of pending
charges against Plaintiffs. See Fed. R. Civ. P.
26(b)(3)(A). Furthermore, because of the availability of the
sources on which the AUSAs relied, Plaintiffs would likely be
unable to make a sufficient showing of need and corresponding
unavailability of alternatives to overcome attorney work
product protection. See Id. (exception to attorney
work product protection where, inter alia,
“the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other
means”). These materials reflect the AUSAs'
investigation at the respective stages in the process and
ultimately state the AUSAs' mental impressions and
conclusions as to the events that transpired. See
Fed. R. Civ. P. 26(b)(3)(B) (“If the court orders
discovery of those materials, it must protect against
disclosure of the mental impressions, conclusions, opinions,
or legal theories of a party's attorney or other
representative concerning the litigation.”). Plaintiffs
are not entitled to disclosure of the factual portions of the
screener sheets or papering forms.
The
handwritten entries on the case jackets do not qualify for
the deliberative process privilege, because they are not
pre-decisional. See, e.g., Nat'l Sec.
Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014)
(setting forth requirements for privilege, including that the
communication at issue occur “before any final agency
decision on the relevant matter”). To its credit, USAO
admits in its letter briefing that the decisions to dismiss
the cases were reached before the handwritten entries were
made. For that reason, the privilege does not apply. However,
as already noted, these entries relating to the AUSA
decisionmaking process would not be admissible at trial
through the testimony of whichever AUSA wrote them.
Accordingly, Plaintiffs are not entitled to disclosure of
these materials either. See also Chang v. United
States, 246 F.R.D. 372, ...