Since pretty much everyone has the day off except journalists, the downtime has been enormous.  I got lunch (a first in a long time). I paid off a cellphone bill and changed my cellphone plan. I even faxed some healthcare paperwork to a lab that was a week late. And I talked for a good while with an old college buddy. But I also got to thinking about the District's own recent civil rights victories.

The biggies that come to mind are the D.C. Council's passing of the gay-marriage bill. And the settlements that have come out of the protester cases. Both the Becker and the Barham cases awarded historic sums and legit reforms concerning police tactics. The Pearl Beale case also was rightfully lauded for its own historic settlement over the death of a D.C. Jail inmate.

What do you think were our biggest civil rights victories in recent years? Cathy Lanier becoming police chief?  Getting rid of the control board? Gay marriage? Pershing Park?

*file photo by Darrow Montgomery.

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.

At this point in the whole Pershing Park court mess, AG Peter Nickles is supposed to just play nice and hope the two big cases settle. Nickles offered up his problematic mea culpa and promised that settlements would be forthcoming. It appears his sweet talk has an expiration date.

Last week, plaintiffs lawyers in the Chang case filed an emergency motion to get the OAG to comply with a request to take a deposition. The plaintiffs lawyers wanted to depose a District official "regarding the District's preservation or lack thereof of electronically stored materials, including e-mails."

This deposition goes to the heart of the entire court mess. And it may be important since the D.C. Council hasn't come close to investigating the Pershing Park discovery problems or the missing evidence in the case.

But the OAG decided to prevent such a deposition from taking place. The lawyers write in their motion:

"Two days before the deposition was to go forward, District counsel unilaterally and without cause announced that the deposition was cancelled, suggesting that it continues to believe its litigation strategy of discovery abuse can continue without consequences."

More on this drama after the jump.

Plaintiffs lawyers go on to write:

"District council has also announced its intention to seek a protective order to block the deposition on the grounds that the deposition does not fall under the purview of the resumption of discovery ordered by the Court."

Last minute deposition cancellations. Protective orders. This sounds like the OAG is reverting back to the stonewall tactics that got them in trouble with U.S. District Court Judge Emmet Sullivan.

The lawyers argue in their emergency motion:

"The District appears to be making the incredible suggestion that Chang counsel cannot question District witnesses or the District itself on whether relevant and responsive documents were destroyed or tampered with through formal discovery."

The Chang plaintiffs argued in a subsequent filing:

"Only in passing does the District disclose its true intent: to prevent Plaintiffs from inquiring about the retention, preservation, destruction, or tampering with evidence..."

The OAG's stance does not bode well for its own investigation into the missing evidence. This is further proof that the D.C. Council should step in.

At the last minute, and after much back and forth, plaintiffs lawyers were able to prevail. They were able to take their deposition on the discovery abuses. Stay tuned.

*photo by Darrow Montgomery.

Nickles writes to the court that "these documents were located as part of the District's sweeps of the OAG Civil Litigation Division." Also included with the production was a privilege log reflecting documents redacted or withheld.

Legal Times' blog first reported on the filing. They write:

“We are told that these are documents that had not been produced after seven years of litigation,” said Bryan Cave partner Daniel Schwartz, who represents protesters rounded up in mass arrests in 2002. “We don’t know much about them.”

Discovery in the cases initially closed in 2007. But Judge Emmet Sullivan of the U.S. District Court for the District of Columbia extended it after the city handed over 13,000 new documents. Plaintiffs’ lawyers say important files in the case have gone missing or been destroyed.

City Desk will have more on this development later today.

At issue: the missing evidence, doctored or missing radio dispatches, and a discovery process that has lasted for years without an end in sight. Nickles' statement apparently has done little to assure plaintiffs that they will be getting a full accounting of what happened during the mass arrests at Pershing Park—and what happened to all that missing evidence.

The attorneys state that they were so disappointed with Nickles and Co.'s representations to the court, they can only form one conclusion: the need for an independent investigation, and "severe sanctions."

The plaintiffs attorneys write:

"Given the District's recalcitrance in admitting even the existence of apparent alteration of the audiotapes and the complete absence in the Declarations of any discussion of how the gaps were created or tapes were not produced, it is clear that only an independent inquiry–not aimed just at glossing over the OAG's shortcomings or pinning all blame for others' failings on [lead counsel Tom] Koger—will be able to resolve this issue."

They argue against Nickles as lead investigator into the missing evidence:

"Nickles has been responsible for this litigation—with his name appearing on all of the filings—since he became the Attorney General in January 2008. A significant number of the discovery abuses occurred while he was serving as the Attorney General, and he has been personally active in these cases....He would hardly be considered an impartial or independent investigator of his own office's actions."

The attorneys write that the declarations of Nickles and other District officials fell well short of Judge Sullivan's order:

"The District does not explain the cause for the District's utter failure to comply with its most basic discovery obligations in the Chang and Barham cases, or why no investigation has been conducted into the missing and apparently destroyed evidence, despite being informed by Plaintiffs years ago of these failures. What is clear from the Declarations is that Nickles provided no explanation for the gross misconduct in this case."

The plaintiffs focus on the issue of time—the seven years of faulty discovery, and the filibustering of the OAG. They did not take kindly to Nickles' using OAG's lead counsel Tom Koger as a scapegoat for the Pershing Park mess.

"It is incredible that the District would suggest that Koger alone was the only person responsible for the District's, and particularly the MPD's, failure to preserve, maintain and produce responsive documents. It is, as noted, a variation of teh District's overall strategy to blame one individual for wide systematic abuse in these arrests, while nimbly shifting responsiblity away from others who share in the culpability."

The plaintiffs go on to address the issue of the missing evidence and Nickles' response:

"The District does not explain how the JOCC Running Resume (and the various paper and electronic copies of it) went missing. The credibility of the declarants is severely undermined by their failure even to address, much less explain how radio run audiotapes were altered—with critical portions apparently erased—or disappeared. Instead the District suggests that these are simply issues it plans to look into at some unidentified future point in time. They also do not explain why these allegations are being treated as new disclosures by Nickles and Efros despite their past involvement in the case on a supervisory level."

The Radio Runs

Plaintiff attorneys highlight the issue of the gaps in the radio dispatches from Pershing Park. They take particular issue with the amazingly faulty deposition of Denise Alexander. The OAG had produced a sworn statement from Alexander testifying that the radio dispatches did not contain gaps. Even after a police official testified in a deposition that Alexander was wrong—that there were gaps in the tapes—the OAG never withdrew her affidavit from the court record. Nor did the OAG ever seek to correct Alexander or investigate the matter further.

"The District continues  to fail to discuss how it came to submit to the Court the patently false declaration of Denise Alexander, why it continued to defend that declaration after it became clear that it contained falsehoods, and how it reached the conclusion never to withdraw Alexander's declaration from the record....In fact, the District fails even to acknowledge that gaps in the radio run audiotapes exist—information that could be confirmed with only a few hours of effort."

The Running Resume

Plaintiffs also take issue with Nickles' accounting for the missing running resume. In his statement, Nickles appears to suggest that the running resume had been turned over to the D.C. Council during its investigation into Pershing Park. This is not so, according to Councilmember Mary Cheh. Plaintiffs confirm this in their filing:

"In an effort to close all remaining holes, Chang counsel reviewed all publicly available files held by the Office of the Secretary to the Council and Committee on Public Safety and the Judiciary and confirmed that the JOCC Running Resume from September 27, 2002 was not among those documents....Moreover, the Committee on Public Safety and the Judiciary staff told Chang counsel that several individuals, over the past couple of years, had examined the same set of documents in a search for the JOCC Running Resume and had been unsuccessful—suggesting that the OAG's office was likely fully aware that the City Council did not have a copy of the document. The direct contradiction of the latest series of declarations from the District should only serve to strengthen the conclusion that the Attorney General's Office cannot be relied upon to get to the bottom of this issue."

Bad Timing

And finally, plaintiffs attorneys address the central question: Why didn't the District investigate the missing evidence years ago?

They write:

"This is not a new problem; the District has known about it for years. In October 2007, the Barham Plaintiffs filed a motion to compel the District to produce running resumes and recorded police channel communications. Apparently, Efros had already assumed her supervisory position over this case by this date. The Court granted the Barham motion on October 30, 2007. On November 16, 2007, the District filed the declarations of Koger and others, which concluded that the JOCC Running Resumes had disappeared. From that point forward, at least, the District was on firm notice that its document retrieval, management and production processes had failed, either through negligence or intentional acts, and some steps should be taken....No investigation was commenced by the District as to the document management practices in these cases or any other cases where similiar problems were likely to occur....Nowhere in its response does the District describe any effort by the OAG to investigate its discovery abuses or determine how and why evidence went missing."

They go on:

"It is clear the OAG knew of these issues, admitted them in Court months ago, and still took no actions. It is only the Court's Orders that ddroe them to commit to take actions to address the inadequate process of handling civil litigation discovery."

*photo by Darrow Montgomery.