UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
RAYMING CHANG, ET AL Docket No. 02-2010, Plaintiffs,
v.
UNITED STATES OF AMERICA, ET AL, Defendants;
and
JEFFREY BARHAM, ET AL, Plaintiffs,
v.
DISTRICT OF COLUMBIA, ET AL, Defendants.
Docket No. 02-2283
Washington, D.C.
July 29, 2009
11:00 a.m.
MOTION HEARING
BEFORE THE HONORABLE EMMET G. SULLIVAN
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiffs: RAYMING CHANG
BRYAN CAVE, LLP
By: Mr. Daniel C. Schwartz
Mr. P.J. Meitl
GEORGE WASHINGTON LAW SCHOOL
By: Mr. Jonathan Turley
JEFFREY BARHAM
PARTNERSHIP FOR CIVIL JUSTICE
By: Ms. Mara E. Verheyden-Hilliard
Mr. Carl. L. Messineo
617 Florida Avenue, N.W.
Washington, D.C. 20001
202.232.1180
For the Defendants:
U.S. DEPARTMENT OF JUSTICE, Civil Div.
By: Mr. Brian P. Hudak
U.S. DEPARTMENT OF THE INTERIOR
By: Mr. Randolph J. Myers
OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA
By:
Mr. Thomas L. Koger
Ms. Ellen A. Efros
Mr. Chad Copeland
PETER J. NEWSHAM
DESO & BUCKLEY
By: Mr. David W. Buckley
FAIRFAX COUNTY SHERIFF’S DEPARTMENT
O’CONNELL, O’CONNELL & SARSFIELD
By: Mr. Alexander Francuzenko
CHARLES H. RAMSEY
VINSON & ELKINS, LLP
By: Mr. John M. Faust
Mr. Robert Boxie
1455 Pennsylvania Avenue, N.W.
Suite 600
Washington, D.C. 20004
202.639.6727
Court Reporter:
Catalina Kerr, RPR, CRR
U.S. District Courthouse
Room 6716
Washington, D.C. 20001
202.354.3258
Proceedings recorded by mechanical stenography, transcript produced by
computer.
PROCEEDINGS
(11:00 A.M.; OPEN COURT.)
THE DEPUTY CLERK: Civil Action 02-2010, Rayming Chang, et al versus
United States of America, et al, and Civil Action 02-2283, Jeffrey Barham,
et al versus District of Columbia, et al. Would counsel please identify
yourselves for the record.
MR. TURLEY: Good morning, Your Honor. Jonathan Turley for the Chang
Plaintiffs. With me today at counsel table is Mr. Daniel Schwartz and Mr.
P.J. Meitl.
THE COURT: All right. Good morning, Counsel.
MS. VERHEYDEN-HILLIARD: Good morning, Your Honor. Mara Verheyden-Hilliard
on behalf of the Barham Plaintiffs, and with me at counsel table is Carl
Messineo.
MR. MESSINEO: Good morning, Your Honor.
THE COURT: Good morning.
MR. KOGER: Good morning, Your Honor. Thomas Koger on behalf of the
District of Columbia, Michael Fitzgerald, Brian Jordan, Bryan DiGirolamo,
Andre Harrison and Michael Smith, and with me at counsel table are Ellen
Efros and Chad Copeland.
THE COURT: All right. Good morning, Counsel.
MR. HUDAK: Good morning, Your Honor. Brian Hudak from the U.S.
Attorney’s Office for the federal defendants. With me here today is Randy
Myers from the Park Service.
THE COURT: All right. Mr. Hudak.
MR. FRANCUZENKO: Good morning, Your Honor. Alex Francuzenko on behalf
of the Fairfax County Sheriff’s Office.
THE COURT: Good morning.
MR. BUCKLEY: Good morning, Your Honor, David Buckley for Assistant
Chief Newsham.
THE COURT: Good morning, Counsel.
MR. FAUST: Your Honor, John Faust, Vinson & Elkins, for former
Chief Ramsey in his individual capacity, and with me from my firm is
Robert Boxie.
THE COURT: All right. Good morning. Is that it? Is that everyone? Mr.
Koger, what about these late disclosures? How do you account for that? How
does the City account for that?
MR. KOGER: The City’s account –
THE COURT: It’s very troubling. It’s very troubling.
MR. KOGER: It is, Your Honor, and I don’t know that I can account for
it in the sense that I have a good reason. I have –
THE COURT: So you have no reason?
MR. KOGER: I have no good reason, Your Honor. Those documents — the
recent documents were turned over to the Office of the Attorney General
while the case was under my management. Some — probably in 2000 — well,
the arrest records, going back to those, 2003, the documents which I have
recently turned over –
THE COURT: Some of the documents are indeed e-mails from people in the
Attorney General’s office.
MR. KOGER: Those documents, Your Honor, I believe, would have come to
me in 2003 or at the latest 2004.
THE COURT: This case is taking on a new identity and it sounds more and
more like the civil counterpart of Ted Stevens.
MR. KOGER: The civil counterpart of –
THE COURT: The civil counterpart of the Ted Stevens case.
MR. KOGER: Your Honor –
THE COURT: It raises serious questions about when, if ever, can anyone
ever trust their government. These are serious, serious problems, and I
was very disturbed to see these e-mails come across the computer screen.
MR. KOGER: Your Honor –
THE COURT: Serious revelations that go to heart of some of Plaintiffs’
theories.
MR. KOGER: Your Honor, first, let me assure you that I am abashed and
contrite in having failed the Court and the parties in this matter.
THE COURT: I’m not so sure it’s just you who has to fall on the sword
here. You know, you’re doing a good job of falling on the sword, but I
think there is probably some other forces that are at work. I’m not — I
haven’t figured it all out and it probably will take another month or two
of briefs to figure out just what the problem is, what the systemic
problem is, but there’s a major problem here.
MR. KOGER: I — to try to — to try to inform your investigation of
this, I would offer that when I took on this case in 2003, I obtained as
many documents as I was able to identify. I set up a war room, if you
will. Some months later that war room was converted to another function
under a collective bargaining agreement and it was the first of several
moves and documents, particularly the e-mails. I misplaced and lost track
of it. There’s –
THE COURT: The videos have been lost also, haven’t they, the videos of
the arrest?
MR. KOGER: No, Your Honor, the CD –
THE COURT: Was there a sizeable number of videos?
MR. KOGER: There was a CD that I produced. Those videos had first been
produced in March of 2004 in response to the joint request for production
by the Abatte Plaintiffs.
THE COURT: I think there’s some surveillance tapes, though, and the
Plaintiffs can address it. I think there is some surveillance tapes that
have never been seen, I believe, and all the copies. Yeah.
MR. KOGER: The CD that I turned over recently, I just had made up so I
could have all the videos in one unit and everyone would have the same
thing. The only –
THE COURT: I may be mistaken, but I’ll let Plaintiffs — I have a
recollection that there were some – many videos as well as all the copies
no longer exist, but I’ll let Plaintiffs address that.
MR. KOGER: Yes, Your Honor.
THE COURT: No, no, I haven’t finished with you, though. I want to find
out what happened. What’s going on here? I mean, how can –
MR. KOGER: I’m sorry, Your Honor.
THE COURT: You know what, look, there are going to be sanctions in this
case and there’s going to be an award of attorney fees, and you know,
those sanctions — and there’ll be additional sanctions, and I’ll tell you
right now those sanctions are going to be painful. They’re going to hurt.
And I think that it’s really unfortunate that the citizens of the
District of Columbia have to pay for these types of shenanigans, and
that’s putting it mildly.
MR. KOGER: Yes, Your Honor.
THE COURT: And I don’t take any comfort out of telling the City’s
attorneys that the sanctions and attorney fees I’m going to impose are
going to be painful, but they are. That’s a promise. And I have no idea
today just what those sanctions will be, because everything is changed.
The landscape has changed since the previous round of sanctions was filed,
and I will, as appropriate, give Plaintiffs an opportunity to ask for
whatever additional sanctions are appropriate, and I will strongly impress
upon them that they should be as innovative as they possibly can within
the realm of reason to suggest to the Court appropriate sanctions, because
this type of conduct by the City’s attorney’s office is unacceptable, it
will not be tolerated and that office is going to pay the price.
But ultimately, the citizens of the District of Columbia lose because
it comes out of their pocket, and they shouldn’t have to pay for these
types of shenanigans, and again, that’s putting it mildly.
MR. KOGER: Yes, Your Honor.
THE COURT: There are other words to describe it. So, what’s happening?
How can this court, the lawyers, the citizens of D.C., the parties, the
Plaintiffs have any confidence, how can they ever have any confidence that
the City has totally fulfilled its obligations to produce the discovery
that it has a responsibility to produce? How will they ever have that
comfort? How will they ever have that confidence? This is shocking what’s
happening here.
MR. KOGER: Your Honor, I certainly don’t disagree.
THE COURT: It’s the civil counterpart of the Ted Stevens case, and
that’s shocking. So, what do I have to do? Appoint a special prosecutor in
this case to find out what happened? Do I have to bring in someone from
the outside to search the City’s files to see whether or not all
discoverable material has been turned over to Plaintiffs? What do I have
to do?
That’s a question I’m going to ask Plaintiffs as well. I’m not going to
tolerate this conduct, and the citizens of D.C. should not have to
tolerate it. What else is there? How do we know that everything that’s
discoverable has been discovered and produced? What can you tell me that
will suggest to me that I have confidence that all discoverable material
has been produced? What can you say?
MR. KOGER: Your Honor, but for — but for an order that would, in
essence, put them in my shoes, I don’t know –
THE COURT: Put who in your shoes?
MR. KOGER: Plaintiffs’ counsel in my shoes. I don’t know how else –
THE COURT: That’s a sad commentary, Counsel. What you’re saying is, the
only way that anyone would ever have any comfort is for this court to
allow Plaintiffs’ counsel to roam through the files of the D.C.
government, that’s what you just told me. That’s a sad commentary.
So what about an attorney’s word that we’ve done all the searches,
we’ve been diligent, we’ve searched everything, and as an officer of the
Court, I assure you, Judge, we’ve turned over everything, we left no stone
unturned. You can’t tell me that.
MR. KOGER: Your Honor, it is that effort that results in this last
minute production.
THE COURT: Last minute production on the eve of a hearing to determine
sanctions.
MR. KOGER: Yes, Your Honor, and –
THE COURT: And we’re talking about startling revelations that go to the
heart of some of Plaintiffs’ theories.
MR. KOGER: Your Honor, I would not debate the pertinence or relevance
of this.
THE COURT: Did someone undertake a new search last week or so? Tell me
what happened.
MR. KOGER: No, it wasn’t someone. It was me, because we had produced
the materials in response to your order of May 27, and in doing so, I was
— I was, for the first time, in a period of time, not had the time to
exhaustively go through those files.
THE COURT: Counsel, you’re telling me this is the first time in years.
These cases were filed in what, in ’02 — these cases were filed in 2002.
MR. KOGER: No, Your Honor, that’s not what I’m telling you. I am lead
counsel in these matters. You may recall I was lead counsel in Abbate, and
I was lead counsel in Burgin. I was lead counsel in International Action
Center before Judge Kessler. I was lead counsel in Becker before Judge
Friedman. I am now lead counsel in Bolger before Judge Bates, and I’m lead
counsel in Frucht before Judge Leon, all of which have overlapping issues
of police responses to protests.
All these documents, which have come in various outreach efforts, are
all, for better or worse, now under me, and I’ve been compiling these
documents since late, late 2003 when I returned to the Office of the
Attorney General. I have tried to maintain but have not succeeded in
adequately organizing these things, and through a series of moves of these
war rooms, these storage rooms and combination of cases and as highlighted
by my failure to produce the arrest records, it was clear to me that I
needed to go through these documents and try and nail everything down, and
I — and it – because of the –
THE COURT: Has everything been nailed down?
MR. KOGER: The best I can tell you is I think so. But in my –in my
effort to do that –
THE COURT: But truthfully, you don’t know that to be a fact, do you?
MR. KOGER: Your Honor, I have to say I don’t know that to be a fact
because what I’ve done is, I have tried to focus my review of these
materials.
THE COURT: But that’s a sad commentary. Look, I have a high regard for
you, and you know that. You’ve been practicing before this court for
years, and I’ve said this before, but it shouldn’t be the responsibility
of one person in a case of this magnitude. And the case has been pending –
and two cases have been pending for seven years — more than seven years,
almost ten years. Actually seven years, and there’s no one else who can
assist you with this task?
MR. KOGER: Sincerely, Your Honor, I believe at this context we have had
a number of co-counsel with me over the years who have come and gone. I
can think of no one who has a grasp of what should be there, has a history
with the cases. Certainly I cannot be extracted from the process, and it
seemed to me when this — when I needed to –
THE COURT: So if you decided to go into private practice tomorrow, the
City would be in a sad state of affairs, wouldn’t it, without your
leadership?
MR. KOGER: I don’t think I’d want to say that, but –
THE COURT: I can say it based upon what you just told me.
MR. KOGER: But, I don’t –perhaps that I’m saying it too much like
blowing my own horn. What I mean to say is I failed to properly
familiarize my subordinates and arrange for them to have time.
THE COURT: But you know what, my high regard for you, Counsel, is not
going to immunize the City from the severe, harsh sanctions I’m going to
impose, and again, they’ll be painful. They’re going to be painful.
Sanctions and attorney’s fees, and this outrageous conduct is not going to
be tolerated by the Court, and there will be significant prices to pay.
It’s admirable that you’re falling on the sword, but that’s not going
to immunize the City, and again, that’s a sad commentary for the citizens
who live here. They’re entitled to better representation.
So what — what’s the next step? I mean, within a week there have been
two significant startling revelations of discoverable material. What’s the
next step? Am I to expect another e-mail at 7:30 tonight?
MR. KOGER: Well, I started communicating to other parties in this
matter shortly after your order compelling the production as to where we
should go from here.
THE COURT: You know what, this case should be settled. That’s what
should happen. This case should be settled as soon as it possibly can to
spare the citizens of the District of Columbia additional expenses,
additional embarrassment and bring some finality to this case. That’s what
should happen.
MR. KOGER: I wish I could have accomplished that earlier.
THE COURT: I understand that. It didn’t happen earlier, but now there
have been some other startling revelations. There’s more discovery out
there. I don’t know what else is out there. At some point the attorneys
sit down and say, "Enough of this, we need to settle this case,"
you know.
The mayor needs to get involved and tell his city government to settle
this case. That’s what should happen. That’s what should happen. It starts
at the top, because this is about the city government and about its
abysmal involvement in this case. And that’s a very appropriate word,
abysmal. This is outrageous.
It’s seven years after this case was commenced, and notwithstanding
numerous court orders, the Government is still locating discoverable
information that has been there for seven years in the Government’s files.
I don’t know what else I can do other than to impose the significant
sanctions and awards of counsel fees that I will do.
I’m going to give the Plaintiff discovery — the additional discovery
they want and the City is going to pay every penny of what their cost will
be for the additional discovery. I can tell you that’s one sanction I’m
going to impose today. Whatever the reasonable expenses are for the
additional discovery that Plaintiffs want, the City is going the pay for
it, every penny. So what does that mean? That means six more months of
delay? Plaintiffs have been delayed for seven years now, notwithstanding a
— notwithstanding numerous resolutions of significant issues in this
court, all of which have been affirmed by the Court of Appeals. This case
has been crying out for settlement for a long time.
Maybe we’re at the posture now where the City government will seriously
consider settlement of all these cases, of all these claims on terms that
are reasonable; otherwise, this litigation is going to go on and I have
every reason to believe there’ll be additional sanctions imposed and
additional awards of attorney’s fees because I don’t have any comfort
whatsoever that all discoverable material has been produced.
And I’m not so sure I’ll ever get to that point in this case, just as I
never had any comfort whatsoever that all discoverable material was
produced in the Stevens case, I never did, and look what happened there.
Anything else? You’ve done a great job of falling on the sword, but you
know what, it’s not your responsibility. I fault the city government for
not giving you the resources that you need to do your job. That’s a sad
commentary. It’s admirable that you stand before the Court and take full
responsibility, but it’s not your fault, Counsel, and you should not have
to stand there and fall on the sword. The city government doesn’t give you
the resources that you need to do your job, then the citizens need to know
that and the mayor needs to give you whatever resources you need to do
your job and to proudly represent the citizens of the District of
Columbia, or the mayor needs to settle this lawsuit tomorrow.
I appreciate your willingness to accept responsibility, but it’s not
your fault. You shouldn’t have to be a one-man show for the D.C.
Government. They’re fortunate to have you there, and if you left tomorrow,
I wouldn’t blame you, because who can work without the resources they need
to properly do their job.
All right, Counsel. Thank you.
MR. KOGER: Thank you, Your Honor.
THE COURT: Let me hear from Plaintiffs’ counsel. You haven’t had time
to go over the documents. You received what, over a thousand pages or so
of document and films. You haven’t had time to go over the documents. I
know that. And one of the things would be, unfortunately, is going to
result in additional delay to the Plaintiffs, more delay, is going to
result in the imposition of sanctions that will be painful, and there will
be awards of attorney’s fees and you will get compensated for every penny
of any future discovery that’s reasonably needed to be conducted in this
case.
How would you like to proceed?
MR. TURLEY: Well, first of all, Your Honor, on behalf of my colleagues,
I want to thank the Court for what it has said. This has been a very
difficult period. Even after a long period of difficulty, this, as you
noted, has changed the landscape in an even worse position.
THE COURT: It’s difficult for a judge, too. Look, I mean, my job here
is to preside over this case in a fair manner and no one ever has enough
time to do his or her job. We all recognize that. And this — I’m sure I’m
not the only judge in this court who routinely extends the time for
everyone to complete discovery, you know, even when the time limits have
been stretched because no one ever has enough time to properly do his or
her job, but this is bordering on the absurd here where, you know, within
a week of a hearing to determine sanctions, the Government locates
information that’s always been there.
It’s one thing to say someone delivered a box of material to the Office
of Attorney General and we never had this before, just came out of
nowhere, but these — this information comes from the D.C. government’s
files, and that’s extremely troubling to the Court, very troubling.
MR. TURLEY: Yes, Your Honor, we are –
THE COURT: And I don’t know. I don’t know if you’ve had enough time to
think about how you want to proceed. I know you haven’t had time to go
over everything you received. I know that. I recognize that. And thank you
for the e-mails.
And that’s another thing. It’s one thing for the Government to, at the
eleventh hour, turn over information to the Plaintiffs, and I didn’t
expect to receive a copy of any information that the Government turned
over to Plaintiffs, but it’s quite another thing for the Court to not even
be informed by notice that additional discoverable material, whatever it
was, had been located and turned over. I wouldn’t have known about this at
all until this morning, unless the Plaintiffs had filed a notice to the
Court indicating that — that discoverable material had been turned over
to them.
MR. TURLEY: Yes, Your Honor. The thing that is most troubling for
Plaintiffs’ counsel, and we have had meetings, because this is
unprecedented for any of us. Even counsel who was involved in Bolger, this
is something that in all of our years of practice we’ve never seen.
THE COURT: Well, unfortunately, I just saw it in another case. I saw
this type of shenanigans by a government, you know, and it is a sad
commentary, and I hope we haven’t gotten to the point where, you know, we
just can’t trust what our governments are doing these days. It’s a sad
commentary.
MR. TURLEY: Well, what particularly disturbs us is that the conduct
leading up to this — first of all, the District hasn’t even fulfilled its
obligations under past orders to compel. There’s still material out there
that have not been produced.
THE COURT: And there’s going to be sanctions, and as I indicated, the
sanctions are going to hurt. They’re going to be extremely painful.
MR. TURLEY: And the thing that we’ve struggled with, Your Honor, on the
Plaintiffs’ side is that when you look at the mosaic of misconduct in this
case, you’re really struck by a series of things that it’s hard to say are
coincidences. I mean, the Running Resume is a good example of that. We
know now that 12 Running Resumes were produced. We know that from the
District’s own witnesses, from 30(b)(6) witnesses, from other witnesses in
terms of those that existed. That — those Running Resumes are enormously
important in a case of this kind as they were in Bolger, and the same
defendant, as was in Bolger, also stood to – withheld that document but
eventually produced it.
In this case, 12 copies of the Running Resume, which is the
contemporaneous — the reproduction of the contemporaneous statements and
radio calls that went out, just disappeared, and the District has no
explanation where they went.
THE COURT: That’s the information I was trying to recall. The radio
runs.
MR. TURLEY: Right. And then you have the –
THE COURT: You have the –
MR. TURLEY: No. You’ve got the Running Resume over here — and by the
way, the City counsel asked for the Running Resume, and what they were
given was something that was not the Running Resume of the JOCC. It was
actually the Running Resume of the special services, and the District
never told them that this — there was another Running Resume that was in
fact relevant, and instead we got the same one. And we finally pressed
them, counsel in both cases, and found out that there were 12 copies of
the real Running Resume that were destroyed. And when we asked for the
radio runs –
THE COURT: You say destroyed.
MR. TURLEY: Well, that are missing, we assume are destroyed because the
District has just said that they have disappeared.
And then when we finally get the radio runs, when they are reproduced,
we get a series of tapes that say that there are two hours of time on
tapes that only one hour is present on, and when we look at those tapes,
the same period, the critical period of the arrests are missing.
I mean, not since Rose Mary Wood has there been a more convenient gap
in these tapes. If you look at each of these tapes, the very same period
is missing. And then you had all the videos, thousands of pages that were
–
THE COURT: That’s startling. That’s shocking.
MR. TURLEY: And thousands of pages were produced after discovery had
run. Your Honor, you practiced. You could imagine, as you’ve seen in our
late notices, what a lawyer would have done in deposition with these
things. So what we’re left with is basically depositions that, it turns
out, that there was a great deal of information for a host, if not all of
these witnesses, that we weren’t able to ask about. And Your Honor –
THE COURT: You’re going have your opportunity. If you want to redo
that, you know, you’re going to have it and they’re going to pay for every
penny of that. I’m not so sure that’s the most productive way, but I’m
telling you right now, you’re going have to give some thought — and I
recognize you’re not in a position now to tell me what type of additional
discovery, but the City is going to pay for every penny of reasonable
expenses for additional discovery.
MR. TURLEY: Well, I appreciate that, Your Honor.
THE COURT: That’s going to be more delay.
MR. TURLEY: Yeah, we’ve been working on that, Your Honor. We actually
think one of the most obvious — Oh, yes, I’m going to turn over to my
co-counsel, but one of the more obvious things that we are likely to
suggest is that while we stated that the Court should award discovery
costs from 2007, we believe the Court should consider forcing the payment
of all discovery because they have made all prior discovery, which they
drew out, to be virtually meaningless for us, and we believe that a
sanction –
THE COURT: That may not be an unreasonable sanction at all.
MR. TURLEY: And perhaps that will return a level of integrity to the
system and may get the attention of people above Mr. Koger to finance this
case for the next round in a proper fashion. My co-counsel has asked to
speak, so I’m not going to delay any further.
But thank you, Your Honor. We will be filing, as you’ve noted –
THE COURT: How much time do you need to sort through what you received?
I’m not ruling out the possibility or probability you may get some more
information from them in another day or two or so, you know, who knows.
Mr. Koger, your search is continuing, right?
MR. KOGER: Yes, Your Honor.
MR. TURLEY: We can probably file something with the Court within two
weeks, but I have to speak with my co-counsel.
THE COURT: That’s about the time frame that I was thinking. So it would
be your request for any additional discovery, and I’m going to get to
other issues and sanctions and attorney’s fees and everything else, but at
the bare minimum, you’re asking for at least two additional weeks.
MR. TURLEY: I believe so, but I haven’t spoken with our co-counsel, who
may have scheduling issues. But from our standpoint in Chang, we can do
that in two weeks, Your Honor.
THE COURT: All right.
MR. TURLEY: Thank you, sir.
THE COURT: Counsel.
MS. VERHEYDEN-HILLIARD: Thank you, Your Honor. I wanted to make a
couple of additional points. We represent the class in this matter. We
also represent virtually every single Plaintiff in the cases that Mr.
Koger referenced, the Bolger case, the IAC case, the Becker case, the
Frucht case, all of those cases.
THE COURT: Right.
MS. VERHEYDEN-HILLIARD: And in the Bolger case, as Mr. Turley
referenced, we have had issues in terms of discovery sanctions and
withholding and dilatory conduct and misrepresentations to the Court from
the OAG. But the problem that we have here, we believe, is not an issue of
resources. To be honest, Your Honor, we believe the issue is more
significant than that.
When it comes to the question that Your Honor asked, which is, you
know, how can we ever be sure that we ever have everything, well, we know
in fact that we can never have everything because the District has
acknowledged it has lost and destroyed the critical operational material
that was created in realtime on the day of the events in question. With
reference to the Running Resume, not only were there –
THE COURT: There’s no way to replicate that with all the technological
experts.
MS. VERHEYDEN-HILLIARD: Well, that’s what I wanted to –
THE COURT: Because, you know, if there’s a way, then you should hire
those experts and I’ll pay for that, too. No, the City will pay for that
as well if there’s a way to legitimately go through the technology that
the City employed that day and recreate it, because what the experts tell
me is everything is there.
MS. VERHEYDEN-HILLIARD: That would be exactly the point I wanted to
make in reference to what Mr. Turley was saying. He referenced the fact
that there were 12 hard copies of the Running Resume, the Running Resume
being the backbone document, the realtime entry of all the information
from all the different police agencies, all the sources, all at the same
time. This is very detailed in the Barham motion for sanctions.
But there were also two electronic automatic redundant backups. Those
were both destroyed. Those were both destroyed as well as all the hard
copies.
THE COURT: When you say destroyed, what’s the basis for –
MS. VERHEYDEN-HILLIARD: The District of Columbia has represented that
those electronic records no longer exist, that they have searched, that
they know the exact path where those were located. We deposed the
operations informational officer who is the one who told us that not only
have there been 12 copies, which were handed all the way up through
command staff, but that specifically the documents, the –
THE COURT: When you say all the way up, does that mean to the chief?
MS. VERHEYDEN-HILLIARD: The chief of police has not acknowledged
receiving it, but in deposition after deposition after deposition they
stated that the chief of police would routinely have received it, and the
chief of police said he may well have received it.
But here’s the really important factor. They admitted in testimony, in
deposition testimony that this material is destroyed after a request had
been made to deliver the Running Resume to the general counsel for the MPD
for the purposes of this litigation. There has been no investigation.
There has been no explanation.
When it comes to the radio runs, we have listened to the radio runs. We
were delivered tapes. We were told those tapes were full. We came back and
we realized, after listening to them, that they were missing time. This
court entered an order in October of 2007, a court order telling the
District that they were obliged to explain the discrepancy and the missing
data on the tapes. In response, the Office of Attorney General filed a
false affidavit with this court, a materially false affidavit to explain
away the Court’s questions.
We did subsequent depositions, and in our depositions, the District of
Columbia was forced to admit that the tapes were not proper, that they
were not complete. The District says that they have destroyed –
THE COURT: The tapes were not –
MS. VERHEYDEN-HILLIARD: Complete. That the radio runs that we have are
in fact missing critical time. The first set they gave us was missing huge
swaths of time at the moment of the arrest, and I want to note not just
one tape, Your Honor, multiple tapes.
How do multiple different tapes, recording different police channels,
all lose data of time at the period of time that the arrests are being
made and the orders are being given across multiple channels? When we
raised this issue, when they were forced to file their false affidavit
with the Court, when we went back to them, they told us that they had
destroyed the master tapes and they could only operate from the copies, so
there was nothing more they could do. Then suddenly –
THE COURT: And this was what, two or three years after the event?
MS. VERHEYDEN-HILLIARD: Right. That’s right. Then suddenly they deliver
to our office new tapes that had more time on them with more explanation
as to where more time can come from since they said they only had one set
of copies and destroyed the masters. But the tapes that had more time
across multiple channels, once again, are still missing seconds and
minutes at the time of the arrests.
I mean, it is as if, as Mr. Turley said, you know, Rose Mary Wood was
leaning backwards and deleting one tape with eight arms. I mean, this is
multiple, multiple tapes. You cannot inadvertently lose this.
In this manner, again, and we believe this is very critical, the
District of Columbia’s deponent admitted that they delivered the tapes to
the MPD general counsel’s office within one week of the arrests. Now, when
we filed our motion for sanctions and we’ve raised these issues with the
District and we put it before the Court, they did not come back and say,
"We’re outraged, we’re shocked, we can’t believe this happened, we’ve
engaged an internal investigation."
The Attorney General of the District of Columbia, Peter Nickles, has
not engaged in an internal investigation as to what happened. With all due
respect to Mr. Koger, I don’t believe this is an issue of District
resources.
THE COURT: I want this — I will say this now. I want Mr. Nickles to
file a declaration in this case addressing all of these issues that you’ve
raised and addressing the issue that Mr. Koger highlighted about the fact
that he has to personally go through all these files, no additional help.
I need a declaration from the man at the top, Mr. Nickles.
MS. VERHEYDEN-HILLIARD: We would appreciate explanation, Your Honor. We
don’t believe — the questions that Your Honor raises are absolutely valid
questions. One, how can we ever know that we’ve received everything, and
indeed we know that –
THE COURT: I don’t think we will ever know. I don’t have any confidence
right now that we’ll ever know that all discoverable material has been
produced.
MS. VERHEYDEN-HILLIARD: Well, we know in fact that it hasn’t because on
those pages that we just got last night, they reference red line versions
of memos that went back and forth. The e-mails themselves show
attachments, but we weren’t given the attachments, so right there, with
these materials last night, we know there’s even more.
With each new set of materials they’ve given us in the last seven days,
all of those materials have indicated and referenced further material and
further discovery, so we can engage in six more months of discovery and at
the end of that time, where will we be? I mean, our clients are so –
THE COURT: This is not going to cost you any money because the City is
going to pay for it. I mean, that’s not much comfort, but some comfort.
MS. VERHEYDEN-HILLIARD: Well, we appreciate that because we believe
that the City has engaged in a practice of really a war of attrition and
scorched earth litigation in this case. They have drawn it out and drawn
it out and at the same time destroyed and lost the critical fundamental
evidence to what went on.
I mean, to lose the realtime documents, and then in their responses
they say, "Well, you should just rely on Defense witnesses’
statements." We should not have to rely on self-serving Defendant
statements. What we should have had is the records of what was being said
and what was being done at the moments in time on that day.
I wanted simply to be able to raise those issues with Your Honor. We
are evaluating the issue of sanction as well and what in fact would
resolve things. There is the issue of additional discovery because there’s
a host of issues raised, including intelligence gathering on the
protesters in material that was just released last week as well as
material that was specifically requested by name in February 2004 and that
the District never produced to us until the night before deposition, the
last day of discovery, which never allowed us then to discover that
material, and again, goes back to the fact we do not believe it’s an issue
of resources.
In February 2004, the Barham plaintiffs specifically requested what’s
known as the Broadbent files, which we knew were intelligence files. They
said they didn’t have them, they didn’t have them, they didn’t have them.
I mean, it’s a specific request. It wasn’t a general request. And then at
the last day of discovery and then the week afterwards, they began
trickling out papers to us, and we could do nothing more with those
documents.
With regard to the field arrest forms. They arrested 400 class members
in this case, and we did not have field arrest forms, and we kept asking
for field arrest forms. The District said they didn’t have them.
THE COURT: All this discovery shortcomings have been appropriately
documented in previously filed motions by Plaintiffs, so it comes as no
surprise. None of this is any surprise to the City.
MS. VERHEYDEN-HILLIARD: That’s right.
THE COURT: I want Mr. Nickles himself, under penalty of perjury, to
address all of those shortcomings, the reasons for those shortcomings and
his plan that he’s going to personally put in place for completion of all
discovery in this case and for whatever his proposal is that will give not
only this court but the parties and the citizens of the District of
Columbia the confidence that they need to have that all discoverable
material has been produced to Plaintiffs. That’s the burden on Mr. Nickles
himself to do that, and I want that done no later than two weeks from
today. I’m not going to extend the time for that.
Now, the question I have of Plaintiffs’ counsel is do you want to wait
and get that information before you tell me how you wish to proceed? I’m
not trying to build in further delay, but I’m going to be as innovative as
I possibly can also in structuring sanctions, attorney’s fees and an
appropriate plan to at least complete discovery in this case.
MS. VERHEYDEN-HILLIARD: Thank you, Your Honor. And I would need to
consult with Chang counsel as well as my co-counsel.
THE COURT: Right. The other question I want to raise now is why there
haven’t been any investigations by the city government into any of this.
Why hasn’t the City council looked into any of these very serious problems
that have been raised, appropriately so, time and time and time again by
the Plaintiffs? There has been no oversight by anyone.
The Attorney General’s office is in charge of this. No one has sought
to intervene, to investigate, to ask questions why these discovery
problems have existed for so long. I submit the city council has an
obligation, the mayor’s office has an obligation to the citizens of the
District of Columbia, if no one else, to ensure that its Office of
Attorney General is functioning at the level of professionalism that the
citizens of D.C. are entitled to.
And it’s shocking that no one has attempted to exercise any oversight
responsibility into the many serious shortcomings of the Office of the
Attorney General of the District of Columbia. And quite frankly, I’m not
going to tolerate it.
Now, if I have to get involved and appoint someone to start
investigating, I’ll do it. I would prefer not to. I will leave it up to
the City to exercise appropriate oversight responsibility, but this
nonsense is going to stop and it’s going to stop soon.
Now, my question to you, and maybe I need to take a short recess to let
you huddle with your colleagues, as to whether or not you want that
declaration from Mr. Nickles first before you tell me how you want to
proceed or whether you want to submit your declaration — your proposal in
two weeks. You may want to think about that and talk about it with your
colleagues for a few minutes, but you know, this is going to come to an
end.
Either this case is going to be settled soon on terms that are fair to
everyone, or discovery is going to be settled but moved to the next wrung,
but I am determined that I’m going to bring about finality in this case,
if the case is not settled, just as soon as I possibly can.
And again to Plaintiffs, whenever you file your declaration — I’m going
to address the other pending issues when I come back. Whenever you address
the issue of sanctions and attorney’s fees, I strongly suggest to you that
you be as innovative in your request for appropriate sanctions, financial
and otherwise, because it’s appropriate that the Court impose significant
sanctions to deter this type of outrageous conduct by the City’s
attorney’s office in the future.
Let me take a short recess, and I want your best thoughts about how you
would like to proceed and then I’ll deal with these other issues that are
pending before the Court at this point.
MS. VERHEYDEN-HILLIARD: I believe we’ll only need a couple of minutes.
THE COURT: I’ll take a recess until noon. That clock is showing ten
minutes till noon. I’ll take a recess until noon, and I’ll address the
other matters that are pending as well.
THE DEPUTY CLERK: This honorable court now stands in short recess.
(A BRIEF RECESS WAS TAKEN.)
THE DEPUTY CLERK: This honorable court is again in session. Please
remain seated.
THE COURT: All right. Counsel.
MS. VERHEYDEN-HILLIARD: Thank you, Your Honor. I consulted with my
co-counsel in Barham as well as with Chang counsel. We would like to file,
in two weeks, our request to the Court regarding the discovery issues, and
we also would like to see in two weeks, as Your Honor had recommended, the
response from the Attorney General. We don’t need to see it first. We
think they should just both be filed.
THE COURT: You want a chance to respond to his?
MS. VERHEYDEN-HILLIARD: We would like to respond to his.
THE COURT: All right. So then the declaration by Mr. Nickles is due two
weeks from today, and Plaintiffs’ request for additional discovery, two
weeks from today. Let’s see, that’s — today is what, the 29th? It’s the
12th and you would like a couple of weeks after that to respond to
whatever Mr. Nickles says?
MS. VERHEYDEN-HILLIARD: Yes.
THE COURT: All right. The 26th for Plaintiffs’ reply.
MS. VERHEYDEN-HILLIARD: Thank you, Your Honor.
THE COURT: All right. And again, the declaration for Mr. Nickles has to
address the pattern of shortcomings, the pattern of discovery abuses in
this case and his plan for concluding discovery and to also give this
court and the parties and the citizens the comfort that they need to know
that all discoverable material has been turned over. Simple as that.
Yes, Counsel.
MR. TURLEY: I just wanted to note that we’re prepared also in two weeks
to be — have our motion cover sanctions as well as –
THE COURT: I’m going to address that in just a few minutes, all right.
I’m going to address everything else that’s pending right now.
MR. TURLEY: Thank you, Your Honor.
THE COURT: There may be a need to talk again. I want to deal with the
other miscellaneous outstanding matters.
Earlier this year, the Court, March 30th, to be exact, the Court
granted the Rule 68 Plaintiffs’ motion for attorney’s fees with a
reasonable amount to be determined by a supplemental order of the Court.
I’m going to refer that. I have enough on my plate right now. I’m going to
refer that to Judge Kay for a report and recommendation on the reasonable
amount of attorney’s fees.
MS. VERHEYDEN-HILLIARD: May I make one request with regard to that?
THE COURT: Yes.
MS. VERHEYDEN-HILLIARD: The District, in its opposition, said that they
believe the Plaintiffs were entitled to, I believe, $97,000 in attorney’s
fees, so that’s not in dispute. So, we would request that they pay that
amount while the Court refers the additional amount which is, I think, at
approximately another 130,000.
THE COURT: All right. Any problems with that, Mr. Koger?
MS. EFROS: May I, Your Honor? We would appreciate the referral to Judge
Kay.
THE COURT: What about the amount of 97,000?
MS. EFROS: We would prefer not to do an interim award at this point. We
would rather have the issue resolved in totality.
THE COURT: All right. I’m going to direct the City to issue a check
within 10 days from today’s date. If it’s not issued, there’ll be other
sanctions. For any amount in excess of $97,000, that’s referred to Judge
Kay for report and recommendation.
The Court also, in early March — strike that – May, granted in part
and denied in part Plaintiffs’ motion to compel against the District and
the FBI respectively. Documents have been produced for in camera review
and that issue will also be referred to Judge Kay for determination of
what if any of those documents should be produced.
There are two motions for leave to file surreplies, one by the Chang
plaintiffs in relation to the OAG officers’ motions for judgment on the
pleadings and one by the FBI in relation to Barham plaintiffs’ motion to
compel.
(PHONE RINGING.)
THE COURT: That’s the daily telephone call.
The Court will grant both of those motions, and the surreplies are
deemed filed. Let me just say one thing, though, loud and clear about
surreplies. I’m not going to tolerate them anymore. There will be no
further surreplies filed in these cases. I can’t think of one motion by
anyone that’s been filed that has not been accompanied at some point by
someone filing a motion to file a surreply. That’s not going to happen.
That’s it. No more.
The parties are admonished that future requests to file surreplies will
be viewed with extreme disfavor, and if I have to impose sanctions, I
don’t care who it’s on, Plaintiffs or Defendants, I’ll do it. I’ll only
grant future requests for leave in exceedingly narrow circumstances such
as a change in the law or newly discovered information. 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 other appropriate remedies, which could include, again, sanctions, so
a hint to the wise should be sufficient.
The Barham Plaintiffs’ motion to compel the FBI search — the FBI to
search its record for references to the named Plaintiffs, that — I’m
going to grant that motion. It’s troubling that in one case someone was
attempting to cross a border and my recollection is his name showed up in
a database somewhere. It’s no hardship at all for the FBI to have a
technician push buttons for databases to determine whether any of these
databases have identifiable records for these Plaintiffs, so substantially
for the reasons advanced by the Plaintiffs, the motion is granted.
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, quote, 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, and this is through the
context of Rule 30(b)(6) depositions or in communications between counsel.
These searches must be conducted and the results disclosed to
Plaintiffs by no later than September 30, 2009.
Now, I want to be fair about that, though. In the event there’s a
search and the search reveals that — reveals privileged information that
should not be disclosed to Plaintiffs, then I direct the FBI to bring that
information to the Court’s attention for appropriate consideration by the
Court. So I’m not — I’m mindful that people could be the subject of other
appropriate investigations, and I’m not trying to interfere with that. I’m
not suggesting that that’s the case, but I’m also mindful that since we’re
dealing with the FBI, it’s extremely possible.
The motions for judgment on the pleadings, we’re not there yet. They’ve
been fully briefed, they’re ripe and at some point, if the case doesn’t
settle, the Court will have to address and resolve that motion, those
motions and potentially other motions filed by Plaintiffs, although my
preference would be to go to trial. You know, if it’s appropriate to carve
out some time for Plaintiffs to file appropriate potentially dispositive
motions, then the Court will do so, so I’ll keep those motions under
advisement.
Now, motion for sanctions. To the Plaintiffs, don’t get surprised at
what I’m about to say, but I’m not back-peddling from anything I said
earlier. But in light of the notices filed by Plaintiffs on the afternoon
of July 27and the evening of July 28, it’s patently obvious to the Court
that the District’s discovery violations are still a very unfortunate live
issue, and as a result, the issue of the appropriate sanctions is not yet
in a posture for
resolution.
There’s no alternative at this point. I mean, I recognize arguments
made by Plaintiff for sanctions up to this point, but there’s no
alternative but to deny, without prejudice, that request because I want to
give Plaintiffs the best opportunity to roll all their arguments into one
pleading for appropriate sanctions and subject to renewal after the
Plaintiffs have had an opportunity to review any newly produced evidence
and determine whether additional discovery is needed.
Now, the Plaintiffs asked for two weeks a few minutes ago, and that’s
fine, if that’s all you want. My – I’m not so sure two weeks is
appropriate, because I want your best arguments for not only the sanctions
that you requested up to the point of your filing of motions, but
sanctions for any conduct that you believe is sanctionable since the
filing of those motions. So the question to you is, how much time do you
really need?
MS. VERHEYDEN-HILLIARD: Court’s indulgence.
(PAUSE.)
MS. VERHEYDEN-HILLIARD: Thank you, Your Honor. We would like to file
our filing in two weeks with regard to the discovery issues and 45 days
with regard to the sanctions.
THE COURT: All right. Now, you’re going to have to file a new pleading.
I mean, basically it may be, you know, paste from the other pleading and
incorporate all your new arguments, but I want one pleading that has your
legitimate requests for sanctions for all the conduct that you believe is
sanctionable.
MS. VERHEYDEN-HILLIARD: Yes, Your Honor.
THE COURT: And I haven’t determined whether I’ll enlist the aid of one
of my magistrate judges to assist me with that, but I want your best
thoughts and I want your – for all the sanctions that you want, which
could be financial and otherwise.
So, you want 45 days from today’s date to file your renewed motion for
sanctions then, correct; is that right?
MS. VERHEYDEN-HILLIARD: Yes, Your Honor.
MR. TURLEY: Yes, Your Honor.
THE COURT: That takes us to — let me ask you about this, Leah.
(PAUSE.)
THE COURT: All right. I haven’t done the math.
What’s 45 days, Counsel? Today is what? What is today, the 29th? I
mean, 30 days — Let’s do it the easier way. 30 days would be August the
29th. What’s today, the 30th? Today is the 29. 30 days would be — August
the 29, so we’re looking at what, September the 15th or so? I mean, it’s
roughly 45 days; is that right?
MS. VERHEYDEN-HILLIARD: Yes, Your Honor.
MR. TURLEY: Yes, Your Honor.
THE COURT: All right. September 15th. How much time for the City to
respond? I’m not going to extend time. I’m just not going to do it.
There’s going to be a new attitude by the Court with respect to requests
to extend time. I mean, we’re inundated with requests to extend time and
also for these motions to file surreplies. That’s all history. So how much
time do you need? 30 days?
MR. KOGER: We would ask 30 days, Your Honor.
THE COURT: All right. October the — October the 15th . And then I’ll
give you two weeks for reply.
MR. TURLEY: Thank you, Your Honor.
THE COURT: All right. And your discovery request, though, you still
want two weeks from today. That’s all.
MR. TURLEY: Yes, Your Honor.
THE COURT: All right. And I gave you a date certain with respect to
that.
And if someone didn’t hear it earlier, the City’s going to be
responsible for all costs associated with future discovery, future
discovery that’s required as a result of the discovery problems that have
surfaced over the past week, all right. And it may well be they’re
entitled to pay for any additional discovery, I don’t know. I don’t know.
If there’s some link between additional discovery and shortcomings in the
past, then they’re going to pay the freight on that.
MS. VERHEYDEN-HILLIARD: And we just wanted to clarify, Your Honor, that
any future discovery is discovery that the Plaintiffs are taking, not that
the Defendants –
THE COURT: Oh, Defendants don’t get anymore discovery, no. The City
gets absolutely no discovery.
MS. VERHEYDEN-HILLIARD: Thank you, Your Honor.
MR. TURLEY: Thank you, Your Honor.
THE COURT: All right. Anything further?
MS. VERHEYDEN-HILLIARD: Not from Plaintiffs.
THE COURT: Mr. Koger, in fairness, any additional requests?
MR. KOGER: No, Your Honor.
THE COURT: All right. Do I need to set another status hearing date? I
probably should. What makes sense here? What’s your best thoughts about
when the status hearing should be? You have a lot of work to do, discovery
requests. Actually, I don’t know, what makes sense here? September?
MR. TURLEY: Your Honor, it may –
MS. VERHEYDEN-HILLIARD: One moment.
MR. TURLEY: I’m sorry, we’re just having to confer, Your Honor.
THE COURT: Sure, sure.
(PAUSE.)
THE COURT: I need to focus on discovery, so that’s the date I’m looking
at. I need some time in September to look at that myself, so maybe the
latter part of September.
MR. TURLEY: Your Honor, we think that perhaps a September status
hearing date would be appropriate in this case.
THE COURT: I think so. I’m looking at September the 29th. That will
give — you’re filing yours in two weeks, the City’s going to respond to
that. I need some time to think about it.
MR. TURLEY: That’s fine with Plaintiffs, Your Honor.
THE COURT: September the 29th at 11:00 o’clock. Is that a good date for
the City?
MR. KOGER: Yes, Your Honor.
THE COURT: All right. All right. Anything further?
MR. KOGER: Thank you, Your Honor.
THE COURT: All right. Parties are excused. Thank you. No need to stand.
Thank you.
(PROCEEDINGS END AT 12:07 P.M.)
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CERTIFICATE OF REPORTER
I, Catalina Kerr, certify that the foregoing is a correct transcript
from the record of proceedings in the above-entitled matter.
________________________________ ____________________
Catalina Kerr Date