CHRISTOPHER SANDERS, P laintif f,

v. DISTRICT OF COLUMBIA, et al. ,

Defendan ts. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 06-1411 (PL F/JMF)

MEMORAN DUM OP INION Currently pending and re ady

for r esolution is Defenda nts’ Motion to Assert Attorney Client P rivileg e and Motion for Protective Or der ( “De fs. 2nd Mot.”) [#56]. For the re asons stated her ein, the motion will be denied. BACK GR OUND Plaintiff, Christopher Sanders, wor ked as a police off

icer for the D istrict of Columbia Metropolitan Police Depa rtment (“MPD” ) fr om 1990 until 2002. C omplaint (“Compl.”) [#1] ¶ 1 3. I n 1996, the MPD cre ated the Spec ial Emphasis Unit (SEU) in order to combat g angactivity and illeg al drugtraff

icking . Compl. ¶ 9. Pl aintiff wa s one of two se rg eants taske d with supervising the offic ers in the SEU. Compl. ¶ 10. Acc ording to plaintiff, during his tenure a s a supervisor, he noticed abuse s of the MPD’s time and attendance policies and subseque ntly repor ted those to his supervisors. Compl. ¶ 11. Plainti ff c laims that following his whistleblowing a ctivity , he wa s adver sely treated by

the MPD. Compl. ¶ 12. S pecif ically , plaintiff claims he w as denie d overtime pa y , phy sically

threatened, a

nd rea ssigne d to a diffe rent O n A p r i l 2 8 , 2 0 0 8 , p l a i n t i f f m o v e d t o a m e n d t h e c o m p l a i n t

. T h a t m o t i o n h a s n o t y e t b e e n r e s o l v e d

. S e e P l a i n t i f f ’ s 1 M o t i o n t o A m e n d t h e C o m p l a i n t [ # 3 0 ]

.position. C ompl. ¶ 12. Plainti ff ther efor e broug ht suit aga inst the MPD in 1997 for violations of

his free speec h rig hts. Compl . ¶ 13. In Aug ust of 2002, plaintiff settled his fre e spee ch ca se (Civil Action No. 97-2938) ag ainst the MPD. Compl. ¶¶ 13, 16. Acc ording to plaintiff, 2 following the settlement of his first ca se, the MPD re fused to ac cept his re quest to resc ind a resig nation he had te ndere d ear lier and ma nufac tured fa lsehoods about plaintiff in re taliation for his filing of the previous lawsuit. Compl. ¶¶ 21-34. Plaintiff re sponded to these e vents by filing the cur rent suit. DISCUSSIO N By order dated Apr il 16, 2008, J udg e F riedman grante d Plaintiff’s Motion to C ompel Responses Fr om the District of Columbia to His I nterrog atories a nd Document Reque sts and For Sanctions [#21] . Whil e not rulingon the merits of plaintiff’ s motion, J udg e F riedman de emed the District’s objec tions to pl aintiff’s motion as havingbeen w aived since the District fa iled to either f ile objections by

the Fe bruar

y 6, 2008 deadline or

move to extend the time within which it had to file its responses. Memora ndum Opinion and Orde r [#28] (“PL F Or der” ) at 2-3. I n an eff ort to allow the District to rede em itself howeve r, Judge F riedman g ave the District until April 28, 2008 to reque st permission to be able to asser t specific pr ivilege objections to plaintiff’s discovery reque sts. I d. at 4. I nexpli cably , the District ag ain fa iled to file any thing within the allotted time-fra

me. I nstead, the D istrict waited until October 17, 2008, the date of

the cur rent motion, before a

ttempting to re vive its privilege claims. As a re sult of its recently

locating new infor

mation responsive to plaintiff’s discove ry reque sts, the defe ndants now see ik to assert the attorney client privileg e as to wr itten communications by

and betwe en counse l for the de fenda nts and MPD’s g ener al counse l’s office

.

T h e r e c o r d i s u n c l e a r a s t o w h e n p l a i n t i f f ’ s f i r s t c a s e w a s a c t u a l l y s e t t l e d

. A c c o r d i n g t o d e f e n d a n t s , t h e c a s e w a s 2 s e t t l e d i n J u n e o f 2 0 0 2

. D e f s . M o t

. a t 8

. A c c o r d i n g t o t h e d o c k e t i n t h a t c a s e , a n o t i c e o f d i s m i s s a l w a s f i l e d b y p l a i n t i f f o n S e p t e m b e r 1 0 , 2 0 0 2

. 2Def

s. Mot. at 4. I n addition, the District also seeks a protec tive order

that would prec lude Ter

ry Ry an, Ge nera l Counsel to the MP D from ha ving to testify

as to his mental impressions and trial strateg y . I d. at 5. I

. Assertion of Attorne y Client P rivileg e Acc ording to defe ndants, on Octobe r 9, 2008, they discovere d “a box full of documents within which wer e files f

rom Plaintiff’s prior whistleblower case which wa s settled with the District in J une of 2002.” Def s. Mot. at 8. I t is these communications, consisting mostly of “ele ctronic ma il from Thomas Foltz to Terry Ry an and othe r attorne y s within the attorney g ener al’s off

ice, includingRobert Utig er a nd Andy Saidon,” that def

endants see k to protect. I d. Def endants a rg ue that the doc uments are not releva nt to plaintiff’s curr ent ca se and that their disclosure would c ause irr ever sible prejudice to their ca se. I d. Plaintiff counters that de fenda nts’ failure to locate a

nd produce these doc uments ear lier evidenc es their f

ailure to mee t their discover y obligations and that in any event, de fenda

nts are prec luded from a sserting any privileg es at this late date . Plaintiff’s Opposition to Defenda nts’ Motion to Assert Attorney Client P rivileg e and Motion for Protective Or der ( “Plains. Opp.”) [#62] at 11-12. Plaintiff also notes that de fenda nts failed to produc e a pr ivilege log in violation of Rule 26(b)( 5)(A) of the F eder al Rules of Civil P roce dure. I d. A timeline is helpful in resolving this disput e. The late Tom F oltz repr esente d the defe ndants in the prior c ase, Civil Action No. 97-2938, a nd also repr esente d the def endants in this action from its inception on Aug ust 9, 2006 until Foltz’s untimely death on July

20, 2008. Although D arr ell Chambers, Esq., joined F oltz in the repr esentation of the defe ndants, Foltz

rema ined ac tive in the case , filing a document on Jul y

17, 2008 [#49] , three day s befor e he die d.

3On April 16, 2008, Judge F riedman issued a n order g iving the D istrict until April 28, 2008 to reque st that “specif ic objections base d on privileg e be e x cluded f rom the wa iver found under this Orde r.” ( Orde r of Apr il 16, 2008). On April 28, 2008, F oltz filed a motion that soug ht to preclude from disclosure personne l information, said to be prote cted f rom disclosure by

provisions of the D.C. Code. The motion indicated that the de fenda nts sought a pr otective or der pe rtaining to “the disclosure of any such personne l information [i .e. information protected by the D.C. Code] not ot herw ise objecte d to on the g rounds of re levanc e or bur den.” D efe ndants’ Motion to Assert Privileg e and f or Entry of a Protective Or der ( “De fs. Mot.”) [#31] at 1. Foltz noted that the “[d]efenda nts continue to object on the g rounds of re levanc e and bur den to the disclosure of the pe rsonnel files of any Chief of Police . . . and off

icials in the cha in of command who w ere not simi larly situated to the plaintiff.” I d. Telling ly , Foltz made the following repr esenta tion in the accompa

ny ing me morandum: The Court’s e nsuing or der on A pril 16, 2008, found that Def endants’ la ck of timely

objection waive d cer tain privileg es but g ave D efe ndants until today , April 28, 2008, to respond with a w ritten motion seekingexception from the wa iver. To date, Def endants have produc ed all docume nts known to them; should [ sic ] have any additional documents be discove red a

nd produce d, Def

endants respe ctfully

reque st the rig ht to assert spec ific privileg es. Def endants’ Me morandum of Points and Authorities in Support of Their Motion to Assert Privilege and for

the Entry of a Protec tive Orde r at 2. On May 29, 2008, J udg e F riedman de nied that portion of the motion that soug ht to claim a privileg e for

personne l rec ords and instea d issued a prote ctive orde r per taining to the pe rsonnel information that would be disclosed. H is resolution of the motion has to mean that he de nied the

4defe ndants’ attempt to do exactly what they

are trying to do now: a ssert a pr ivilege as to documents that may

be discove red at some future time. Moreove r, if it was a

n open question, the de fenda nts’ attempt to now claim a pr ivilege as to the newly

discovere d evidenc e is inexcusable. We know that Foltz was re sponsible for the two

case s from F ebrua

ry 2002 to his death in 2008. Yet there is no ex planation for how letters fr om Foltz hims elf to Ter

ry Ry an in the MPD about the 2002 c ase c ould not have bee n “discove red” until 2008. Moreover, w hile death ha s unfortunate ly seale d Foltz’s lips, t here is no ex planation from the de fenda

nts of how and why

Foltz could have r epre sented to Judge F riedman that all pertinent doc uments had bee n produce d when they clea rly had not bee n produce d. The

answe r–that they

wer e only

rec ently discovere d–beg s the question of how a ny kind of compete nt

sear ch could not find them in the fir st place? How is it possibl e that docume nts relating to the first ca se we re not discove red when the a lleg ation in the second c ase is that plaintiff’ s bring ing the first ca se wa s one of the r easons f or the unc onstitut ional manner in which he wa s treate d and Foltz was counsel in both ca ses? See Compl. ¶ 33. Finally , it is clear that the “ newly discovere d documents” w ere called f or by plaintiff’s discovery reque sts. I ndeed, de fenda nts do not even cla im that they wer e not. I n any

event, I nterrog atory

No. 8 asks def

endants to “[i] dentify

all communications, written and or al, betwe en the District of Columbia and/or MPD offic ial(s) in which Christopher Sanders wa s discussed in the [sic] May

2002 throug h the pre sent.” Plains. Opp. at 5. A c orre sponding doc ument reque st, Document r equest No. 1, se eks “[a]ll documents identified or re fer red to in re sponse to Plaintiff’s I nterrog atories to De fenda nt District of Columbia.” I d. Document r equest No. 5 se eks “[a]ll e-ma ils and other docume nts that mention P laintiff or the subjec t matter conc erning Plaintiff for the time per iod [ sic] J une 2002 throug h Dec ember 2003.” I d. The doc ket entrie s for

5the first ca se indicate that J udg e Roberts, then a ssigne d to the case , canc elled the tria l on April

15, 2002 and re fer

red the matter to me for

settlement. Those settlement discussions culminated in the filing of

a notice of

dismiss al by

plaintiff on September

10, 2002. I t would appea r that settlement discussions were cer tainly continuing f

or most of the late Springand Summer of 2002. Wit hout some more spec ific showing , it therefor e ca nnot be said that cor

responde nce betwee n Foltz and Ry an wa s not called for in discovery

in the curr ent ca se or that the de fenda nts

wer e not under

any obligation to look for them and asser t any privileg e we ll before J udg e Fr iedman’s or der of

April 16, 2008. Unfortunately

for de fenda

nts, they wer e g iven seve ral opportunities by J udg e F riedman to assert the r eleva

nt privileg es. Not only

did defe ndants fail to re spond at all to plaintiff’s initial discovery reque sts, forcingplaintiff to move to compel the infor mation, but even whe n allowed a repr ieve by

J udg e F riedman, de fenda nts failed to ac t. Worse, they provide no justification for not finding the “new ly

discovere d documents” in the f irst place so that they

could have either produce d them when they wer e supposed to or c laimed the appr opriate pr ivilege . As a re sult, defe ndants must now fac e the c onsequenc es of their actions. In this case, that mea ns that any privileg es def

endants would have asse rted in re lation to the newly discovere d materia ls are deeme d waived a

nd the mater ials must therefor e be pr oduced. I I

. Protective Or der The de fenda

nts ask me to prec lude the deposition of Te rry Ry an, Ge nera l Counsel to the MPD. To do so, Iwould have to c onclude that ther e is not a sing le question that could be propounded to him that would not be objec tionable bec ause it would disclose a confide ntial communication betwe en attorne y and client or

attorney work produc t. That is impossi ble; Ry an, like any other witness, c annot claim an immunity from testifying a s to facts. More over, the

6defe ndants are protec ted from a ny kind of fore feiture of either privileg e bec ause a

witness is permitted to ref

use to answe r a que stion if the answer would disclose privileg ed information. Fe d. R. Civ. P . 30 (c) (2), By the same toke n, depositions of opposing c ounsel are disfavore d and no one c an cla im a rig ht to waste time by

asking ag ain and a g ain questions that clea rly call for the disclosure of what eve ry

lawy er know s is privilege d. Iexpect plaintiff’s counse l to conduct the deposition consistently

with this principle. To expedite the matter and r esolve que stions as they arise, I invite counsel to conduc t the deposition in my jury room on a da

y that Iwill be available so that Ican r ule on any

objections as they

arise. CONCLUSION Def endants have, in this instance, and f or whatever

rea son, failed to comply

with the Fe dera l Rules of Civil Procedur e to uphold their oblig ations during the discover y proce ss. Their motion to assert a privileg e as to what they descr ibe as “ newly

discovere d evidenc e” is de nied as is their attempt to preve nt the deposition of Terr y Ry an. An Orde r ac companies this Memora ndum Opinion.

/S/ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE Fe bruar y 25, 2009

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