City Desk

Pershing Park Case: Nickles Seeks Order Barring Public From Seeing Discovery Materials

Peter NicklesThe Office of the Attorney General continues to play stall ball in the Pershing Park cases. Recently, District lawyers lost their bid to take back documents previously turned over to plaintiffs attorneys. The fight over the never-ending discovery now centers around the District's filing of a motion for a protective order banning vasts amounts of government documents.

OAG attorneys argue that the order would simply and reasonably protect personal information from being made public. Attorneys even use Washington City Paper to zing plaintiffs lawyers!

Monique Daniel Pressley, senior assistant attorney general, wrote in a Nov. 5 e-mail to plaintiffs lawyers:

"Is there a public interest served by confidential information...being printed in The City Paper tomorrow?"

I guess someone has been reading all our Pershing Park blog items!

Plaintiffs attorneys argued in court—and over e-mail—that the proposed protective order's true aim went well beyond redacting  social security numbers.

Lawyers in the Chang case write:

"The District's Motion for a Protective Order, however, is not what it is represented to be. In reality, it is an unheralded effort by the District to claim the unilateral power to prevent use or disclosure of any document the District would find to be embarrassing or harmful to its defense, even if no recognizable privilege would attach. With increasing attention to newly disclosed evidence showing prior intent to clear the streets of the city and abuse of the discovery process, the District is seeking to limit Plaintiffs' use of such information."

The lawyers go to write:

"The true purpose of the District's Motion is barely concealed in the filing. The District seeks the power to mark any document—perhaps consisting of dozens or hundreds of pages—in its entirety as 'Confidential.' Thus, even if the document contains a single telephone number on a single page that the District elected not to redact, the entire document would be subject to the proposed Protective Order and its use limited."

The proposed order as written by the OAG backs up the plaintiffs' attorneys fears. The order doesn't just seek to redact personal info. It goes well beyond that to include barring "sensitive information pertaining to law enforcement personnel and law enforcement strategies and methodologies."

Aren't law enforcement strategies and methodologies at the heart of this case? Isn't that line just vague enough to bar just about any police document?

The scope of the order would not only apply to e-mails and government documents. It would ban even disclosures made in depositions. There would also be a blanket press blackout on all depositions whether the material was confidential or not. The proposed order states:

"All deposition transcripts shall be treated as CONFIDENTIAL INFORMATION subject to the Protective Order for a period of twenty (20) days after receipt of each of the transcripts." Challenges could be made as to whether or not the deposition could be made public.

Imagine if every other deposition was subject to a new set of motions, a new round of classic Nickles stonewalling?

Pressley insisted to the plaintiffs attorneys in the same Nov. 5 e-mail that the protective order was a standard OAG document. "No time wasted drafting one," she wrote. "Contrary to your repetitious litany with respect to delay and obstruction, a general protective order would enable the District to produce documents faster, as there would be no need for many of the time-consuming redactions."

Plaintiffs lawyers aren't buying it.

"We believe the sweep of the protective order is positively breathtaking," plaintiffs attorney Jonathan Turley tells City Desk. "The order would have succeeded in most of the embarrassing information being withheld from the public and the media. Such an order would not only hamper any disclosure of misconduct by the District but hamper the litigation itself."

The order is still under consideration in U.S. District Court.

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  • Truth Hurts

    Protective orders involving governmental entities are properly granted only when narrowly drafted and based on demonstrated harms. Judge Sullivan should simply issue an order saying MOTION DENIED and the OAG should research the law before it embarrasses itself further.

  • Comrade Al Gonzales

    This case is in a court of public record. All records in this case should be public. Yes, you can redact phone numbers but you can't withhold entire documents.

    & you're right - "law enforcement strategies & methodologies" are at the heart of the case. This would be like a person in a car wreck case saying, any evidence on my driving strategies & methodologies is privileged. BS.

    This is standard discovery. Nickles is a joke - it's no wonder Judge Sullivan has little patience left with the stonewalling the District has tried. Look for Judge Sullivan to give Petey Nickles a nice spanking.

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