Missing discovery documents irk D.C. AG

John O'Brien Aug. 14, 2009, 12:10pm


WASHINGTON, D.C. (Legal Newsline) - District of Columbia Attorney General Peter Nickles is upset with his staff, telling a federal judge that some members of it may face disciplinary action in a civil case alleging improper arrests of protestors.

Nickles submitted a 16-page declaration to U.S. District Judge Emmet Sullivan, who is presiding over a lawsuit brought by anti-globalization activists who were arrested at Pershing Park in 2002. The plaintiffs' attorneys claim Nickles' office lost or destroyed several key pieces of evidence.

"The discovery lapses at issues here are inexcusable and should not have occurred," Nickles wrote.

"Even my preliminary investigation discloses that (Office of the Attorney General) personnel responsible for discovery made serious errors in managing and producing documents in these cases."

He wrote that his investigation is continuing and that further steps may include "necessary disciplinary actions against attorneys and others who were directly responsible for discovery in these matters."

Nickles singled out former lead attorney in the case, Thomas Koger. Koger is a senior assistant attorney general and has since been replaced as lead attorney.

"(T)he responsibility for the errors here falls on him," Nickles wrote. "He, and those he supervised, misplaced documents and, because they were not indexed upon receipt, lost track of them. Thus, the documents were not timely produced."

Nickles said actions will be taken to address the issues that led to the missing documents. Those issues include a lack of a document management protocol and the repeated relocation of documents within the Civil Litigation Division.

He wrote that while litigating against the District as a private lawyer, he was routinely frustrated by discovery problems that he now realizes were caused by massive discovery requests placed on a staff not large enough to handle them.

Nickles also wrote that the D.C. City Council turned down an effort by former Mayor Adrian Fenty to have money allocated for a document-management system.

"The (OAG) still suffers from limitations on staffing and support which has been exacerbated by the current fiscal crisis facing the City," he wrote.

"I wish I could represent to the Court that there will be immediate improvements in resources, including staffing and document-management technology, made available to the OAG to prevent some of the problems that have occurred in this case from occurring in the future.

"Unfortunately, given the current District budget problems, and not withstanding my best efforts, I am disappointed to report that for Fiscal Year 2009 the Council reduced the OAG budget by over $2 million, and for FY 2010, the Council has reduced the OAG budget further by almost $3 million, which certainly will result in a reduction in force of present staff."

Nickles said he will also investigate "what appears to be the apparent highly problematic failures of (the Metropolitan Police Department) to maintain evidence related to these cases as well as conflicting accounts as to such missing evidence."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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