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Federal Judge to D.C.: ‘There will be significant prices to pay’

Reprinted from Legal Times

U.S. District Judge Emmet Sullivan blasted the District of Columbia Attorney General’s Office at a hearing earlier this week, calling the city’s mishandling of a high-profile suit alleging false arrest the “civil counterpart” of the Justice Department’s botched prosecution of Ted Stevens. The judge used the phrase “sad commentary” seven times and promised “painful” sanctions. Ouch.

Sullivan directed D.C. Attorney General Peter Nickles to submit an affidavit within two weeks addressing a “pattern of shortcomings” and “discovery abuses” in the seven-year-long litigation in which two groups of plaintiffs were swept up by city police in a mass arrest of bystanders at Pershing Park in 2002 amid a demonstration against the International Monetary Fund and the World Bank. One suit was filed against the federal government, and the other targets D.C.

The plaintiffs have charged that the city has destroyed or lost critical police department documents, and city lawyers acknowledge that key pieces of evidence are missing. Lawyers for the city failed to turn over to the plaintiffs other documents in a timely manner. “It raises serious questions about when, if ever, can anyone trust their government,” Sullivan said in court, according to a transcript of the hearing.

That criticism is not sitting well with Nickles. “I don’t think that was a statement that should have been made. That doesn’t do anyone any good,” Nickles, a former Covington & Burling partner, said in an interview. Nickles remarked that he is sure Sullivan is a “great judge” but the question about trust, he said, went too far.

Nickles blamed a poor document management system for the city’s inability to track down and timely produce certain police records from the mass arrest of nearly 400 people. Nickles said he doesn’t think there was any intentional destruction of documents. “Our document management system is not up to the document management system I knew at Covington,” Nickles said. He is urging city leaders dedicate more funding for document management in agencies across the city “so we can keep up with the large private law firms” in class action cases.

“There are probably missing documents. When you deal with tens of thousand of documents, that happens,” Nickles said.

Mara Verheyden-Hilliard, a lawyer for one group of plaintiffs, said in court that she doesn’t think the government can blame a lack of resources for the missing documents. For instance, she said, information was deleted from audio tapes the city provided to the plaintiffs.

Verheyden-Hilliard said the “city has engaged in a practice of really a war of attrition and scorched earth litigation in this case. They have drawn it out and drawn it out and at the same time destroyed and lost the critical fundamental evidence to what went on.”

Sullivan, who is contemplating an independent investigation of the city’s bungling of the case, is urging District lawyers to settle the litigation.

“The mayor needs to get involved and tell his city government to settle this case. That’s what should happen,” the judge said in court. “It starts at the top, because this is about the city government and about its abysmal involvement in this case. And that’s a very appropriate word, abysmal. This is outrageous.”

Sullivan said it’s “really unfortunate that the citizens of the District of Columbia have to pay for these types of shenanigans, and that’s putting it mildly.” He said the D.C. Attorney General’s Office “is going to pay the price.”