Judge Accuses D.C. of Discovery Violation 'So Extreme As To Be Literally Unheard Of'

In a scathing opinion (PDF) issued Monday, U.S. District Court Chief Judge Royce Lamberth accused the city and its attorneys of "repeated, flagrant, and unrepentant failures to comply with Court orders" in their handling of discovery in a six-year class action suit.

The case - brought over the city's alleged failure to make preschool special education programs accessible - was scheduled for trial on April 6. When the parties arrived, however, plaintiffs’ counsel informed Lamberth that the city’s attorneys were continuing to “dump” thousands of e-mails and planned to continue releasing them even after the trial was over.

Comparing the city’s behavior to “a standup comic who delivers the punch-lines of his jokes first” or “a plane with landing gear that deploys just after touchdown,” Lamberth wrote that “a discovery violation of this exotic magnitude is literally unheard of in this Court.”

At the time, Lamberth ordered (PDF) the city to turn over all e-mails within a week of the trial’s conclusion on April 7; the city had waived its right to review the e-mails for privilege, he ruled. The city asked him to reconsider, a request he denied in Monday's decision.

Ariel Waldman, senior counsel to the attorney general, declined to comment, citing the pending litigation.

The lead counsel for the class, Bruce Terris of Washington’s Terris, Pravlik & Millian, said he thought Lamberth’s opinion was an “accurate” depiction of what’s been going on in the case. Terris said he saw the opinion as a warning to attorneys and clients who might fail to comply with discovery orders in the future.

“If [attorneys] knew that decisions like this were likely or even possible, they would lean on their clients something awful to make sure their clients complied with discovery rules,” he said.

Lamberth has yet to rule on the merits of the case since there are several post-trial motions still pending, including the city’s motion to decertify the class (PDF) and for relief (PDF) from Lamberth’s previous ruling granting the class partial summary judgment.

The case stems from allegations that city school officials failed to identify and provide special education programs to preschool students in need for years, in violation of the Individuals with Disabilities in Education Act (IDEA) and other federal and local statutes, according to the complaint (PDF).

In October 2010, Lamberth granted the class summary judgment (PDF for the time period ending in 2007, finding that city school officials had violated the IDEA and Rehabilitation Act in failing to identify, reach out to, and efficiently handle referrals from families in need of preschool special education.

A schedule was set for filing motions on relief, and also for proceeding to trial on the charges for the time period from 2007 through the present, Terris said.

Lamberth noted in his opinion yesterday that he first “refereed” a discovery dispute in the case in 2008, when he criticized the city for failing to respond to requests for document production during the three years after the class first filed suit in 2005.

The problems continued and came to a head on April 6, according to Lamberth, when plaintiffs’ counsel told the court that the city’s attorneys had indicated that they planned to continue submitting e-mails on a “rolling” basis throughout the trial.

When Lamberth pressed the city’s attorneys for an explanation, he wrote, they responded that new searches had continued to yield thousands of e-mails, and that the city was too understaffed to review all of them before the case went to trial.

The bench trial went forward and concluded the next day. At that time, Lamberth ordered the city to produce all of the e-mails the plaintiffs had requested – the city’s attorneys had waived their right to a privilege review at that point, he wrote – within a week.

The city asked Lamberth to reconsider, writing in its motion (PDF) that “the circumstances here simply do not meet the standard for imposing such a severe sanction.” The city’s attorneys also argued that they had acted in good faith, that allowing documents to come in after trial wouldn’t prejudice the other side and that the plaintiffs’ counsel had also engaged in “dilatory discovery.”

In his opinion, Lamberth wrote that he was keeping the sanction in place because “the Court felt that strong specific deterrence was particularly necessary in light of the District’s failure to get the message the first time.”

As for the city’s argument that it had tried in good faith to comply with discovery orders? Too little, too late, Lamberth wrote.

“The Rules … require adherence to a very precise framework for navigating the discovery process,” he wrote. “A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.”

National Law Journal photo by Diego M. Radzinschi.

Comments

[Houcine]

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[Account Deleted]

That accusation was something that has to be appealed to the Judge, I think they did absolutely the right thing and I was on their place I'd do the same. That was a very smart and moreover honest decision. I couldn't have expected any better from them. I first heard of this case on the internet radio and I can't deny I was extremely pleased to find this out.

[David]

“If [attorneys] knew that decisions like this were likely or even possible, they would lean on their clients something awful to make sure their clients complied with discovery rules.”

Except that decisions like this are handed down by the fistful against the District of Columbia, and yet it's attorneys still continue to one-up each other's frauds and mistakes.

[ArlingtonAaron]

"Unheard of"? Not if this judge has been talking to his colleagues: try Barham v. Ramsay, which included all of the above behaviors, and added in deliberate destruction and editing of evidence. As far as I know, sanctions are still being considered there as well.

[Mike Hamilton (e-discovery beat)]

“If [attorneys] knew that decisions like this were likely or even possible, they would lean on their clients something awful to make sure their clients complied with discovery rules.” This quote amazed me about how clueless some attorneys are concerning discovery rules and the potential penalties that come with violating them. Hopefully this ruling will do its part in spreading the word that the FRCP's discovery rules must be followed or else parties will pay the consequences.