JOHN M. FACCIOLA, Magistrate Judge.
In my
[#837] at 1-2.
On October 4, 2011, I denied the District's motion to stay.
Speaking to my responsibilities as Special Master, the District has requested Judge Sullivan to relieve me of any responsibility to explore the JOCC Running Resume and to have me instead complete my findings of fact only as to the audio and videotapes that are also the subject of Judge Sullivan's May 5, 2010 order.
For their part, plaintiffs noticed the deposition of the District of Columbia pursuant to Rule 30(b)(6) but the District declined to permit any inquiry about the following topics:
Plaintiffs move that the District be compelled to produce a witness who will testify as to these topics and the District cross moves for a protective order against having to do so.
As to topic 3, the delay in counsel's advising the court and the plaintiffs of the deletion, the District protests that any such testimony will invade the attorney-client privilege it may have with the witnesses and the attorney work-product privilege as well. Thus, the District also separately moves to preclude a Notice of Deposition that seeks the testimony of Monique Pressley, who was the District's lead counsel in this case.
Chang plaintiffs answer that this theoretical claim that the inquiry they seek may invade a privilege is groundless in that they seek only factual information pertaining to the deletion of the E-Team s data.
It must be recalled that this case has been proceeding on two parallel tracks and that I have been fulfilling two roles, that of special master and that of magistrate judge supervising discovery. Lest I invade Judge Sullivan's consideration of the District's motion to stay all aspects of the special master's work except my findings pertaining to the audio and videotapes, I will restrict myself to viewing the problems solely as the magistrate judge presiding over discovery.
First, as to relevance, I have already concluded in this very case that any discovery pertaining to the location of information and its loss that might yield a legitimate claim for sanctions is well within the scope of discovery permitted by Rule 26(b)(1) of the Federal Rules of Civil Procedure. See
Moreover, any attempt to delete data from what is now the only source of information regarding the running resume may yield evidence of a consciousness of guilt by the person who did it that may be of important evidentiary significance at trial if his or her actions were done at the behest of an employee of the District or the individual defendants.
It is, of course, true that the discovery of even relevant evidence can be prohibited by a protective order issued pursuant to Rule 26(b)(2)(c), when a careful balancing of the factors identified in subsections (i) through (iii) of that subsection of the rule indicate that the cost and burden of the discovery sought outweighs its utility. An analysis of those factors indicates that the District has failed to make its case that a protective order should issue.
The first two factors speak to whether the discovery sought is cumulative or duplicative or can be obtained more cheaply or conveniently, and whether the party seeking the discovery has had an "ample" opportunity to obtain the information by other discovery. Here, since the deletion was not discovered until after discovery had ended, it was impossible for plaintiffs to direct any discovery to it during the discovery period. Nor is there any other way to get it than to ask the District, through a 30(b)(6) deposition, what its personnel know about how it happened. In that context, plaintiffs are correct to point out that witnesses whom the District identified when it asserted that they previously spoke to this issue did no such thing.
The District pointed to the testimony of three prior 30(b)(6) witnesses that the District had provided: 1) Giuseppe Crissafulli, 2) George Crawford, and 3) Leanne Turner. [#841] at 11. But, Turner indicated that she was not prepared to speak to the deletion of the E-Team data, and Crissafulli and Crawford were deposed before the deletion was even discovered. [#845] at 6-7.
The District also noted that plaintiffs had the opportunity to depose Marc Bynum. [#841] at 11. However, while Bynum did detect the deletion, he, as a contractor, could not possibly know who may have done it and, as plaintiffs point out, Bynum limited his testimony to events that occurred after January 1, 2007, although the deletion occurred in 2003. [#845] at 6 n.8. Thus, this issue is a blank slate and plaintiffs should be permitted to pursue it.
The final factor is whether the utility of the discovery outweighs its burden and cost, considering the "needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(C)(iii).
First, the amount in controversy is significant; a companion case settled for a very substantial amount of money. Second, a comparison of the parties' resources, those of a municipal treasury versus those of individuals, would seem to favor the individuals since the only cost will be the time that has to be spent by counsel and the witness at the deposition. Finally, I have already stated now on two occasions why I am convinced that discovery into the loss of information and its possible purposeful destruction are legitimate inquiries. Surely, with a sanctions motion looming that may result in a large award of attorney fees, or the District's being precluded from asserting a defense, introducing evidence, or being subjected to an adverse inference instruction, the issue of who deleted the data and when is crucial. Whether sanctions are appropriate is a decision that should be made on the basis of the best possible factual record. Thus the importance of the possible spoliation issue, and the obvious reality that there is no other way to explore the issue than by the discovery contemplated, makes for a most compelling conclusion that the weighing of the pertinent factors favors permitting the discovery sought.
I appreciate that this case presents what one has to hope is a unique circumstance. There are not many cases where the FBI is investigating the same facts that are to be explored in discovery in a civil action. But, as plaintiffs point out, the potential complications that arise from this circumstance are at this point theoretical. I fully expect counsel for the District to advise any employee, whom it is going to interview about the possible criminal destruction of evidence, that he or she has the right not to incriminate himself or herself and, if necessary, secure for that person independent counsel if that person insists upon it. As I have pointed out, if at that point, the witness refuses to testify on the grounds that he or she might tend to incriminate himself or herself, there the matter will end and there is nothing any of us can do about it.
I part company with the Chang plaintiffs, however, in their effort to take the deposition of Monique Pressley, Esq., who was the District's counsel in February, 2010 when Bynum discovered the deletion of the E-Team data, but who is no longer the District's counsel. Plaintiffs want her to speak to topic 3: "the rationale, justification, reasoning, and/or explanation for the nearly three month delay in transmitting such information to the Court and the Chang Plaintiffs." It has always troubled Chang plaintiffs that Ms. Pressley told counsel for the other defendants what Bynum had discovered soon after she learned of it but told neither them nor me until several months later.
The effort to take Ms. Pressley's deposition faces some particularly difficult obstacles. First, as the District correctly points out, there is a heavy presumption against subjecting opposing trial counsel to a deposition. [#836] at 11 (quoting
Second, it is equally clear that, while the work product privilege as set out in the Federal Rules of Civil Procedure speaks of a document, it unquestionably also prohibits the exploration of the lawyer's thoughts, opinions and mental impressions even if they have not taken tactile form.
Lest there be any confusion, however, I want to make it clear that topic number in the notice of deposition is a legitimate area of inquiry of the District's representative at the Rule 30(b)(6) deposition. Privilege claims must be asserted during that deposition to preserve them.
Plaintiff's resumption of the 30(b)(6) deposition will be permitted but its attempt to take Ms. Pressley's deposition will be denied. An