Pershing Park Case: New Discovery Abuse Shocker
After some last minute stonewalling by the Office of the Attorney General, Pershing Park plaintiffs were finally allowed to depose a District employee concerning the vast discovery abuses in this mess of a case. Backed up by a court order, the employee was deposed on October 23. According to a filing submitted in U.S. District Court yesterday, the deposition exposed new discovery abuses.
What are those new abuses?
During discovery over the cases, District employees culled e-mails related to Pershing Park. There were so many e-mails found that they needed a flatbed dolly to transport the documents. Those thousands of pages were carted to the office of the D.C. Police Department's general counsel.
Years later, the documents have not yet been turned over to plaintiffs attorneys. Even after the U.S. District Judge Emmet Sullivan slammed the city for its discovery failings this past summer. Even after AG Peter Nickles promised a thorough case review and document dump.
How do the lawyers know this? The District's own witness—Kimberly Thorpe—told them in last week's deposition.
Thorpe has the credentials to speak on the discovery screwups. For 14 years, Thorpe worked within the police department as the Deputy Director for Operations and Information Technology. She had also served as an Supervisory IT specialist.
In 2002, at the time of the Pershing Park mass arrest, Thorpe says:
“I was responsible for day to day operations of the Department’s wide area network, and therefore all of [the MPD’s] computers, computer systems and agency-centric applications.”
Under her direct supervision were “hardware technicians, there were server technicians, there were email technicians, and there were application technicians.”
Here is what Thorpe said about the e-mail documents:
Thorpe: "There were quite a few boxes."
Lawyer: "Could have been more than 3 boxes?"
Thorpe: "It could have been."
Lawyer: "Could have been as high as 10 boxes?"
Thorpe: "It may be."
Lawyer: "Do you recall how the boxes were transported to Counsel's Office?"
Thorpe: "On a flatbed dolly."
Lawyer: "Was that because of the size and number of boxes?"
And here's the other zany detail: D.C. Police only searched the subject lines of the e-mails. They could not or did not know how to search the body of the e-mails. For example: search terms like "Pershing Park" or "IMF" or "mass arrests" or "hogtying" had to be in the subject line. If those terms were not in the subject line, District employees wouldn't have culled the e-mail:
Plaintiffs attorney Carl Messineo: "So then if there was an email for example from Charles Ramsey, and the subject line said September Arrest, and in the body of that email it said, 'After I gave the order to make the mass arrests at Pershing Park," and then continued. Am I correct to understand that the search that the MPD engaged in would not produce that as a result?"
And then later in the deposition, there is this:
Messineo: "For all those emails, for whatever set of emails might exist that said Pershing Park in the body but did not have any key search terms in the subject line, what happened to those emails, should they have existed at one time?"
Thorpe: "At this point in time, they are gone."
Messineo: "Destroyed, correct?"
Thorpe: "I can't say they are destroyed. I can say that these backup tapes have been overwritten, and I can say that those hard drives of any machine that had them, have been surplussed at this point in time, yes."
The upshot? The D.C. Police conducted an incredibly poor search. They still found thousands of pages of documents. They carted them over to the general counsel's office. The documents then were never turned over to plaintiffs lawyers. The ones that they missed in their search are now gone.
As the lawyers write in their filing: "The persistent fact remains: The scope of spoliation and destruction is massive."