RAYM INGCHANG et al. , P laintif fs,
v. THE UNITE D STATE S OF AM ERICA et al., Defendan ts. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil No. 02-2010 (EG S/JMF )

MEMORAN DUM OP INION There rema in for re solution t hree matters: (1) D efe ndant District of Columbia’s Motion for a Protec tive Orde r [#530] ; (2) De fenda nts’ Motion to Quash the Subpoena Served on A ssistant Attorney Gene ral Stacy

Ander son, and for

a Protec tive Orde r [#534] ; and (3) the District’s Motion for Ge nera l Protective Orde r [# 539] . The issues ra ised by these Motions were discussed at a rec ent status hear ing, a

nd Iissue this Order to memorialize my

intentions as to each of

them and to provide the parties with my ruling s. I
. Def

endant District of

Columbi a’s Motion for a Protective Or der [#530] The two interr og atories at issue, numbers 7 and 8, de mand that the District provide a detailed e x planation of the where abouts of ce rtain docume nts that should have been pr oduced e arlier

than they wer e. The District claims that discover y about the wher eabouts of the se docume nts ex cee ds the scope of the supplemental discove ry that J udg e Sullivan has order ed and obje cts to their over ly burdensome nature, insisting that they will require the District to speak to eve ry one who might have e ver ha d the documents.Ihave r eviewe d the portions of the tra nscript of the he aringto which the District points. J udg e Sullivan did not speak specif ically to whether

discovery

about the wher eabouts of the se docume nts was prohibited in the per iod of supplemental discove ry that he orde red be cause of the be lated produc tion of documents by the District. The portions of the transc ript of the hea ring on September 29, 2009 did not dea l with that issue at all. Instead, the judg e, while initially questioning the need f

or any additional discovery , then indicated that the District would have to pa y for a ll additional discovery that was re quired, to the last penny . This statement was a ref ere nce to the ne ed articulated by

plaintiffs’ counse l to re-take depositions that had alre ady been taken bef

ore plaintiffs had the ne wly -produc ed docume nts. The other state ments upon which the District relies a

rticulate the judge ’s conc ern that the discovery he wa s permitting be
rea sonable. The re is ce rtainly nothing in those stateme nts from which one could possibly infer his pre cluding discovery into the issue of how it happene d that the documents produce d in 2009 were not produce d ear lier. J udg e Sullivan did not preclude suc h discovery and, as pla intiffs corr ectly point out, the Fe dera l Rules of Civil Procedur e expressly permit discover

y about the location of docume nts. Chang

Plaintiffs’ Opposition to Defenda nt District of Columbia’s Motion for a Protective Or der [#548] at 4 (quoting F eder al Rule of Civil P roce dure 26( b)(1) (discover y permitted into the location of doc uments)). More over, the District’s claim in a footnote, w ithout citation of any authority , that discovery

perta ining to sanc tions is inappropriate beca

use sanc tions and discovery are separ ate issues is non sequitur . Whil e 1
Memorandum of

Points and Authorities in Support of Def endant District of 1 Columbi a’s Motion for a

Protective Or der at 5 n.2

2they

may be sepa rate , discovery

may unquestionably

be used to fle sh out whether sanctions ar e appr opriate a nd which one should be imposed. There is certa inly no impediment in the discovery provisions of the Fe dera l Rules to their use to inform the court’s e x erc ise of discre tion in choosing the sa nction to be imposed. Thus, in two particula rly famous ele ctronic discove ry case s, J udg e Scheindlin per mitted discovery

and then ca librated the sa

nction she imposed on what the disc overy established as to the mental eleme nt that attended the loss of infor mation–whether

it was neg lige nce, gross neg lige nce, or

a purpose ful destruc tion of information. Z ubulake v. UB S W arbur g L L C, 229 F.R.D. 422 (S.D.N.Y . 2004); Z ubulake v. UB S W arbur g L L C., 220 F.R.D. 212 (S.D.N.Y. 2003). Plaintiffs should be pe rmitted to do the same thing here . In fac t, the District has an e qual intere st in making sure that J udg e Sullivan’s decision on what sanction to impose is as well informed a s possible. The District’s motion will have to be denied. To meet the D istrict’s claim of burde nsomeness, I will only permit plaintiffs to propound Interrog atories 7 a nd 8, as plaintiffs have ag ree d to narrow them. Once we have the District’s answe rs, I intend to consider a

ny objection by

plaintiffs that they

may not have a

nswere d them sufficie ntly . Iexpect the District to make a conscie ntious effort to supplement what we know about the loca tions of these docume nts from the ea rlier decla rations of Mr. N ickles and Mr . Kog er by answe ringthese interr og atories a s
narr owed. I I
. Def

endants’ Motion to Quash the Subpoena Served on A ssistant Attorney Gene ral Stacy

Ander son, and for

a Protec tive Orde r [#534]

3I t is my intention to supervise the deposition of Ms. Ander son on (if nec essar y ) a question-by -question basis to insure that the plaintiffs se cure from her the information to which they

are entitled without invading a ny leg itimate privileg e or othe r inhibition t he District will claim. I t is im possible and useless to pre dict how I will rule until Ihear

the questions, and I

may call for supplemental brief

ing be fore Irule on pa

rticular que stions. I I I
. Motion for Gene ral Protec tive Orde r [# 539] The status hea

ringreve aled to me that the pa rties and their

counsel shar e my

view that all information produc ed in discover y does not there by

become public. See Ander son v. Ramsey , No. 04-CV-56, 2005 WL475141, at * 2 (D.D .C. Mar. 1, 2005). L est there be any doubt, Iexpress my

expectation that the par

ties to this case and the ir counsel will not disseminate, transmit to another pe rson, or disclose to a ny one who is not a pa

rty to this lawsuit documents, electronic ally stored information and all other infor mation that has bee n produce d in discovery by any party to this l awsuit. To express my conce rn, I will set forth that understa nding a nd expectation in an Orde r that I now issue. Violations of that Orde r will be consider ed a c ontempt and will be re fer red to Judge Sullivan. An Orde r ac companies this Memora ndum Opinion.

_______________________________ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

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