The District of Columbia is fighting a court order (PDF) for testimony from the former lead attorney in litigation over the mass arrests at the city's Pershing Park in 2002. U.S. District Magistrate Judge John Facciola found that while the lawyer's thoughts and opinions might be protected work product, any privilege was outweighed by the court's need to know what happened.
In a September 27 order, Facciola called on Monique Pressley, a former senior assistant attorney general, to testify about events leading up to the city's disclosure in July 2011 that an unknown individual may have attempted to destroy information related to the arrests. The city filed a motion (PDF) this morning asking Facciola to reconsider.
Facciola, who was appointed as a special master in March 2010 to investigate allegations of destroyed evidence in the case, said in his order that Pressley's "mental impressions, conclusions, opinions, or legal theories are absolutely protected from disclosure as work product." However, he wrote that Pressley's privilege yielded to the court's need for information that was unavailable elsewhere.
In today's motion, the city argued that any information Pressley knew was already on the record and that regardless, the plaintiffs failed to show there was a "substantial need" for Pressley's testimony that would outweigh the protection of her work product. "There is no basis on this record to conclude that there is any need – much less a substantial need, and certainly no extraordinary circumstances - to justify invasion of Ms. Pressley's work product," the city's lawyers argued in their brief.
Pressley resigned from the attorney general's office last November, saying at the time that her departure was unrelated to the Pershing Park case. She could not immediately be reached for comment this morning. A spokesman for the attorney general's office, Ted Gest, declined to comment.
The case stems from the arrest of hundreds of individuals at Pershing Park in September 2002 during demonstrations against the World Bank and International Monetary Fund. A number of arrestees sued the city, claiming they were only bystanders to the demonstrations. The city settled one class action over the arrests in 2009, but the case at issue now has pressed on.
In July 2011, city attorneys revealed in court that a review of police computer servers in May of that year showed that an unknown individual had attempted to delete information from a police activity log, known as a Running Resume. Plaintiffs' lawyers called for an investigation into why the city had waited weeks to disclose that information. In today's filing, the city maintained that there was no evidence that any information was actually deleted.
Later that summer, the court received a letter claiming that a police officer, John Strader, had found a hard copy of the Running Resume a year earlier that disappeared after he turned it over to the department's general counsel. The District has disputed that account.
Besides Pressley, Facciola ordered testimony from Strader, two individuals who reviewed the police data at issue, the police department's general counsel and, if necessary, police Chief Cathy Lanier.
A lead attorney for the plaintiffs, Bryan Cave's Daniel Schwartz, said today that the plaintiffs will be filing opposition to the city's motion for a reconsideration of the order for Pressley's testimony. "We do believe it is appropriate for the special master to hear her testimony," he said.