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US District Court for the District of Columbia 
Order in Chang v. US and Barham v. DC
July 30, 2009




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RAYMING CHANG, ET AL Docket No. 02-2010, Plaintiffs, v. UNITED STATES OF AMERICA, ET AL, Defendants;

Civ. Action No. 02-2010 (EGS)


Civ. Action No. 02-2283 (EGS)


In view of the hearing held on July 29, 2009, and upon consideration of all the matters discussed therein, it is by the Court

ORDERED that plaintiffs’ proposal for further discovery in these cases shall be filed by no later than August 12, 2009. Also by no later than August 12, 2009, defendant the District of Columbia (“District”) shall file a declaration, under penalty of perjury, from Attorney General Peter Nickles. Attorney General Nickles’s declaration shall address (1) the pattern of discovery abuses engaged in and repeatedly acknowledged by the District during the pendency of these cases; 2) the District’s plan for both promptly concluding discovery in these cases and assuring the Court, the parties, and the public that all discoverable materials have been turned over to plaintiffs in these actions; and (3) whether any investigations have been conducted into the discovery violations and missing and/or destroyed evidence in these cases and if not, why not.

It is FURTHER ORDERED that plaintiffs’ response to Mr. Nickles’s declaration shall be filed by no later than August 26, 2009. The defendants’ response(s) to plaintiffs’ discovery proposal shall also be filed by no later than August 26, 2009.

It is FURTHER ORDERED that, in view of the most recent belated document productions by the District, plaintiffs’ motions for sanctions are DENIED WITHOUT PREJUDICE to refiling upon plaintiffs’ review of the newly produced evidence and determination of what, if any, further discovery is needed. Plaintiffs’ renewed motions for sanctions shall be filed by no later than September 15, 2009; the District’s combined response to the Barham and Chang plaintiffs’ motions shall be filed by no later than October 15, 2009; and plaintiffs’ replies shall be filed by no later than October 29, 2009.

It is FURTHER ORDERED that, upon further reflection by the Court, the individual officers’ motions for judgment on the pleadings or, in the alternative, for summary judgment filed in the Chang action are DENIED WITHOUT PREJUDICE to refiling at the close of any future discovery to be conducted in these actions. Consequently, the Chang plaintiffs’ motion to file a surreply to the officers’ reply is DENIED AS MOOT. The Court will set a briefing schedule for the renewed motions when the relevant issues are in a posture for resolution.

It is FURTHER ORDERED that this case is referred to Magistrate Judge Alan Kay for (1) resolution of what, if any, documents produced in camera as a result of the Court’s May 27, 2009 Order and in connection with the Chang plaintiffs’ motions to compel against the District and the Federal Bureau of Investigation (“FBI”) should be produced to the Chang plaintiffs; and (2) a report and recommendation on the amount of attorney fees and costs, if any, that the Rule 68 plaintiffs in the Barham action are entitled to in excess of the $97,302.71 Ordered by the Court on July 29, 2009 to be paid by the District to the Partnership for Civil Justice Fund within ten days of that Order.

It is FURTHER ORDERED that for the reasons stated in open court on July 29, 2009, the plaintiffs’ motion to compel the FBI to conduct a name search through records collections is GRANTED and the FBI’s motion to file a surreply in connection with that motion is also GRANTED and the surreply deemed filed. The FBI is directed to run the names of the named plaintiffs through the data sources identified by plaintiffs and to disclose any positive results from the search regarding the maintenance and use and dissemination, including intelligence-related use and dissemination, of information and data related to the persons arrested on September 27, 2002 in connection with the Pershing Park mass arrest through a Rule 30(b)(6) deposition or in communications between counsel. Notwithstanding the deadline previously provided by the Court at the hearing on July 29, 2009, these searches must be conducted and the results disclosed to plaintiffs by no later than September 15, 2009. Any claims of privilege relating to such information must be brought to the Court’s attention by the FBI by no later than September 15, 2009.

It is FURTHER ORDERED that the Court will hold a status hearing on September 29, 2009 at 11:00 a.m. in Courtroom 24A.

With respect to the filing of renewed motions, including but not limited to the motions for sanctions and the motions for judgment on the pleadings, the parties are advised not to refer back to arguments made in prior pleadings. Rather, the parties are directed to include all arguments, points, and authorities in the newly filed pleadings. The parties are further directed to hand-deliver to Judge Sullivan’s chambers one (1) copy of any and all pleadings and exhibits filed from this point forward as well as a binder containing one (1) copy of the principal authorities relied upon by the party.

Finally, the parties are admonished that future requests to file surreplies will be viewed with extreme disfavor and close scrutiny, and the Court will grant future requests for leave only in exceedingly narrow circumstances such as a change in the law or newly discovered information. The parties are on notice that any new arguments made in replies and/or proposed surreplies that could have been made in the original motion or response will result in the striking of pleadings and/or other appropriate remedies, which could include sanctions.


Signed: Emmet G. Sullivan
United States District Judge

July 30, 2009

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