Lawyers for the D.C. government are facing possible disciplinary action after failing to turn over or possibly even preserve evidence in a high-profile civil case alleging improper mass arrests, D.C. Attorney General Peter Nickles warned today.
The warning is the latest twist in litigation related to the 2002 arrests of anti-globalization protesters in Pershing Park, near the White House.
Last month, U.S. District Judge Emmet Sullivan harshly criticized what he called a “pattern of shortcomings” and “discovery abuses” in the seven-year-long litigation. Plaintiffs’ lawyers say there are missing documents and that other evidence has been destroyed, including audio recordings. Sullivan ordered Nickles to provide a response within two weeks.
In a 16-page declaration (pdf) filed today, Nickles writes that District lawyers had indeed failed to turn over some documents. He outlines a plan to try to investigate what went wrong, and he writes that there could be consequences for lawyers who have been involved in the case.
“The investigation is continuing and as findings are made, or other actions are deemed necessary by me, we will so advise the Court,” Nickles writes. “These further steps may include necessary disciplinary actions against attorneys and others who were directly responsible for discovery in these matters, as well as elsewhere within the District government, including with respect to issues concerning preservation of evidence.”
He singles out the lawyer who has been District’s lead counsel in the case, Senior Assistant Attorney General Thomas Koger, as ultimately responsible for the discovery errors. “He, and those he supervised, misplaced documents and, because they were not indexed upon receipt, lost track of them. Thus, the documents were not timely produced,” Nickles writes.
In a separate, 13-page filing (pdf), Koger notes that the District has produced about 10,000 pages of documents in the litigation, despite problems with its case management system and with other D.C. officials. Koger writes that he made “exhaustive, albeit unsuccessful, efforts” to find a log of police activity for the day of the arrests, but that the Metropolitan Police Department either didn’t make one or destroyed the copies it had, possibly by accident.
But Koger also accepts much of the blame for failing to turn over documents. Some of them, he writes, were kept outside a main storage area “in a cubicle commonly assigned to interns.”
“I did not maintain control of them, as aggravated by repeated relocations of pertinent documents within the premises of the Civil Litigation Division, and they were not timely produced,” he writes.
Koger is no longer the District’s lead counsel in the case. In his statement, Nickles writes that he’s replaced Koger with Ellen Efros, an assistant deputy in the Attorney General’s Civil Litigation Division. Efros has already ordered sweeps of storage areas, and she’s coordinating with D.C. police and Mayor Adrian Fenty’s office to search for more documents, Nickles writes.
In addition, Nickles writes that former U.S. District Judge Stanley Sporkin has agreed to advise him “to assist in improving the management of discovery in our massive class action cases.” Sporkin, former general counsel to the CIA and now with Gavel Consulting Group, advised D.C. Chief Financial Officer Natwar Gandhi two years ago when prosecutors announced that two tax office employees had fleeced the city of more than $20 million.
“The discovery lapses at [issue] here are inexcusable and should not have occurred,” Nickles writes. “Even my preliminary investigation discloses that [the Office of the Attorney General’s] personnel responsible for discovery made serious errors in managing and producing documents in these cases.”
Nickles’ filing adds up to a much harder line than the one he took two weeks ago, when in an interview he largely blamed the District’s case management system. “There are probably missing documents. When you deal with tens of thousand of documents, that happens,” he said at the time. (While taking personal blame in their statements today, Nickles and Koger also repeated their complaints about the case management system. Nickles said improvements are unlikely, given cuts in the District government’s budget.)
Sullivan, in a July 29 status conference, compared the District’s discovery woes to the problems that plagued federal prosecutors in their case against then-Sen. Ted Stevens (R-Alaska). “It raises serious questions about when, if ever, can anyone trust their government,” he said then.
The next status conference is scheduled for Sept. 29.