Replies

[Lo-pro NOTE- legal appeal details material turned over----and material still being sought by IAC]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

INTERNATIONAL ACTION CENTER, et al.,
Plaintiffs
Case No. 01CV00072 (GK)

UNITED STATES OF AMERICA, et al.,

Defendants.

OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL DISCOVERY PRODUCTION FROM THE DISTRICT OF COLUMBIA

Introduction

The District of Columbia opposes plaintiffs’ motion to compel discovery production. Plaintiffs seek discovery of information and/or documents that far exceeds that which is relevant to the claims referenced in their complaint or any defense thereto and, further, seek information and/or documents that are protected from disclosure by the law enforcement privilege.

The District of Columbia has, in good faith, attempted to resolve and, at minimum, narrow discovery issues. Plaintiffs’ first detailed complaint of alleged deficiencies in any of the District of Columbia’s discovery responses was set forth in a letter dated April 30, 2002.

In response, the District of Columbia provided, on May 29, 2002, Supplemental Responses to Plaintiffs’ First Set of Interrogatories (a copy of which is attached to plaintiffs’ motion to compel at tab 3).

Thereafter, consistent with this Court’s Order of June 5, 2002, the District of Columbia provided, on June 21, 2002, Supplemental Responses to plaintiffs’ International Action Center, Justice Action Movement, Elizabeth Ayer, Brian Becker and Adam Eidenger’s First Request for Production of Documents (plaintiffs’ motion, tab 9); a Supplemental Document Production Index and Privilege Log (plaintiffs’ motion, tab 6) and a Second Supplemental Response to Plaintiffs’ First Set of Interrogatories (plaintiffs’ motion, tab 4).

The parties subsequently met on June 28, 2002 to discuss discovery issues and the District of Columbia agreed to provide a Redaction Log that would, for the most part, describe the redaction made and the basis for the redaction on a page by page basis.

That Redaction Log was provided to plaintiffs on July 12, 2002.

Also produced on that date were lesson plans on O.C. Spray, the Use of Force, and the Use of A.S.P. Tactical Baton, portions of which had previously been redacted.

The parties had further discussion about discovery issues in a July 18, 2002 telephone call, pursuant to which the District of Columbia agreed to review, one additional time, items from its Redaction Log that plaintiffs contended were relevant and should be produced. Pursuant to that review, and in a final attempt to resolve the remaining discovery issues, defendants produced several pages of previously redacted documents. Plaintiffs filed the instant motion to compel discovery production on July 19, 2002.

Background

Plaintiffs seek injunctive relief alleging that the defendants use practices and tactics that are unconstitutional because they disrupt and interfere with activities protected by the First Amendment.

Plaintiffs’ Amended Complaint involves alleged actions taken against them at three locations, in the area of 14th and K Streets, N.W. (where the Metropolitan Police Department, responding to reports of a large crowd of demonstrators marching in the street, south on 14th Street, without a permit, and reports of cars and/or property being damaged, and vending machines being thrown into the street, blocked further southbound movement in the street); at the 14th and Pennsylvania Avenue entry point to the Inaugural Parade, where plaintiffs claim they were delayed entrance, and at the Navy Memorial where one plaintiff asserts she was sprayed with mace or pepper spray.

Plaintiffs have filed exceedingly broad discovery requests to which defendants have responded with thousands of pages of documents.

The District of Columbia has produced in excess of one thousand pages of documents, thirty-eight video tapes, and numerous photographs and audio tapes.

Notwithstanding this voluminous production, and defendants’ efforts to resolve discovery issues, plaintiffs seek to compel further discovery production from the District of Columbia.

The information plaintiffs seek to compel is not “relevant to the claim or defense of any party” (Fed. R. Civ. P. 26(b) (1), and/or is subject to non-disclosure pursuant to the law enforcement privilege.

Argument

Information Related to Tactics and Training

Plaintiffs assert that they seek production of documents that identify the Metropolitan Police Department’s (MPD) “official or de facto policies, practices and tactics relating to demonstration activity as evidence(d) by official rules, regulations, manuals or handbooks , as well as evidenced by training materials…”

Plaintiffs’ motion at 4.

Plaintiffs also seek audits, reviews or evaluations of “such practices.” Yet a review of plaintiffs’ referenced discovery requests show they are far broader.

For example, plaintiffs seek any correspondence from MPD officers to counterparts in other jurisdictions or countries; audits, evaluations, and reviews that relate in any way to mass protests; and all materials that reflect this or other jurisdictions’ response to protesters, without regard to whether any such information, if it exists, was used to train any MPD officer or incorporated, in whole or in part, in any policy, practice, regulation, manual or handbook.

Plaintiffs’ requests are also not tailored to the actions challenged or even the demonstration (January 2001 Presidential Inauguration) at issue in this complaint. As such, these requests are overly broad, unduly burdensome and not reasonably calculated to lead to admissible evidence.

Nonetheless, the District of Columbia has provided plaintiffs with all responsive relevant materials including the O.C. Spray Lesson Plan, General Order 901.4 – Aerosol O.C. Spray Dispensers, Lesson Plan – Use of Force, Lesson Plan – Use of A.S.P. Tactical Baton, Handbook on Management of Mass Demonstrations, Civil Disturbance Units (CDU) initial and refresher training class schedules, General Order 901.7 – Use of Force, General Order 901.1 – Use of Firearms and Other Service Weapons, and relevant portions of the Operations Plan, Parade Manual and Civil Disturbance Unit Response Plan for the 54th Inauguration of the President of the United States.

Plaintiffs allege that the District of Columbia has refused to produce the training materials used in the CDU training classes.

The only document the District defendants have not produced is the lesson plan on chemical munitions (tear gas) because there is no allegation in plaintiffs’ complaint about the use of tear gas at the Inauguration demonstrations.

Defendants have also refused to produce a copy of the MPD training video on “crowd control formations.”

The videotape on crowd control formations is not relevant to plaintiffs’ claims or any defense in this matter and is not likely to lead to admissible evidence. (Even if it were relevant, this videotape is protected from disclosure by the law enforcement privilege, as subsequently set forth herein).

The videotape on crowd control formations is approximately ten minutes long and is an extremely small part of the 40 hour initial and 8 hour annual refresher training provided to MPD officers in civil disturbance units.

The syllabus for both the initial and refresher course has been provided to plaintiff. The syllabus indicates that the videotape is shown within the context of an hour-long class on crowd control formations which is followed by over an hour of field exercises in these formations.

While the tape demonstrates a number of crowd control formations that may be employed in a variety of situations, it does not require that any particular formation be used in any particular situation.

Plaintiffs complaint is not about any particular crowd control formation, rather, as plaintiffs’ assert in their motion, the general use of police lines to disperse, box in, splinter, redirect and misdirect groups of protesters. Thus, a videotape depicting various formations police may use to control crowds in different situations, information that could be misused to counter the formations depicted in the training tape, is not relevant to plaintiffs’ claims or likely to lead to admissible evidence. There are no additional CDU training materials that have not been produced and the CDU training classes are not videotaped.

Plaintiffs complain that the MPD has not produced contracting and other documents from SRB Productions, Inc. However, plaintiffs have, pursuant to their own subpoena to SRB, the relevant SRB documents for the surveillance videos SRB produced during the January 2001 Inauguration. See plaintiffs’ motion tab 12. The MPD has provided copies of all of the video tapes of Inaugural events it obtained from SRB Productions to all of the parties.

Plaintiffs correctly point out that MPD has not provided a training video tape, produced by SRB Productions, that was created during the summer of 2001, months after the January 2001 Inauguration.

Plaintiffs do not, however, correctly describe that video tape. The video tape -- The Changing Face of Demonstrations -- is approximately twenty-five minutes long. Contrary to plaintiffs’ assertions the video tape does not focus “very much” on the Inaugural events at the Navy Memorial. There is approximately one minute of footage from the Inauguration, mostly from the Navy Memorial, footage, however, which is the same as that found on the SRB video tapes already produced to the parties. There is an intelligence portion that is approximately five minutes long but there is no showing of images of individuals the intelligence unit has “targeted as troublemakers,” and the MPD does not maintain a “face book” on political activists.

There are three video tape “dubs” - one of which is titled “Rough Edit – Worst Case Scenario Anti-Globalization Protest Footage.” This is a rough cut compilation of mostly violent scenes from mass demonstrations, many of which are contained in the final training tape – The Changing Face of Demonstrations. This tape contains sound but no voice over, and has not been used to train officers or otherwise shown.

Another tape is titled “MPD Demonstration Training – Off Line Dub.” This tape depicts most of the same scenes and voice over contained in the final training tape. Occasionally, there are directions on the right hand side of screen to place bulleted information that appears in the final training tape. This tape has not been used to train officers or otherwise shown. The last tape contains raw footage of scenes from demonstrations without any sound. Most of the scenes depicted in this footage are included in the final training tape. Similarly, this tape has not been used to train officers or otherwise shown.

Defendants do object to the production of these video tapes since they were created months after the January 2001 Inauguration. The three “dubs” are not used to train officers and have not otherwise been shown and the final training tape – The Changing Face of Demonstrations -- was not used to train officers in preparation for Inaugural events.

All Unproduced Video Tapes or Digital Records Related to the Inauguration

As previously indicated, defendants have produced all video tape it possesses related to the Inauguration.

While SRB Production’s records indicate that an earlier start time for recording was anticipated, MPD has produced all of the rooftop video tapes it received from SRB Productions and SRB has indicated that it has no additional video tapes of Inaugural events.

Furthermore, there are no stored images from the Command Center that have been maintained from the January 2001 Inauguration. Similarly, all of the street level video tapes have been provided.

A search of the MPD email system for January 20, 2001 using the keywords Inauguration, demonstrations, demonstrators, and protesters did not identify any email messages. Police cruisers are equipped with digital mobile computers. However, most MPD officers that were involved in Inaugural events did not use police cruisers. The use of police cruisers during the Inauguration was, for the most part, limited to neighborhood patrols outside the perimeter of Inaugural events.

Records Maintenance

There is no record-keeping system for protesters, political organizations or activists. The intelligence unit does maintain paper files relative to some, mainly large, demonstrations. These files may include information on protesters or protest groups. Generally paper files are maintained, with only occasional incidental storage on individual word processors or computer diskettes. These files contain information gathered from law enforcement sources and investigations and other information obtained from public sources such as the Internet. The information is generally event-specific and is maintained by event/demonstration. Due to the large number of events/demonstrations taking place in Washington, D.C. much of the information is not retained beyond a particular event/demonstration.

MPD does not maintain a “Face Book” and does not routinely or systematically identify or broadcast photographs of “troublemakers” or activists. Insofar as plaintiffs’ interrogatory seeks to identify any electronic data base that any MPD officer has accessed that may contain information on protesters or protest groups, it is over broad, unduly burdensome, irrelevant and not calculated to lead to admissible evidence.

Intelligence and Surveillance Records

A. Intelligence and Surveillance Records are not Relevant to any Claim or Defense

Plaintiffs seek discovery concerning the Metropolitan Police Department’s intelligence operations and data, including the identification of any undercover officers and operations. Defendants have provided redacted logs from the Synchronized Operations Command Center (SOCC)(Document 73, Bates pages 867-939), and the Running Resume for the Inauguration Day intelligence teams (Document 82, Bates pages

1127-1141), as well as 38 video tapes and numerous audio tapes, all of which report and/or record activities of law enforcement and protesters/protest groups on Inauguration Day. Defendants have not provided any handbooks, rules, policies or procedures regarding the operation of the MPD intelligence unit and the use of “undercover agents” because there are no such written documents.

Defendants have identified all of the MPD officers who were detailed for Inauguration Day to intelligence teams. (See Defendant District of Columbia’s Supplemental Response to Plaintiffs’ First Set of Interrogatories, number 10 – Tab 3 to plaintiffs’ motion).

MPD officers detailed to intelligence teams worked on Inauguration Day in plain clothes in various locations along and near the Parade route in order to monitor the crowds and to report any information heard or observed concerning plans, attempts or actions that might disrupt Inaugural events and/or violate the law and to take law enforcement action, if needed. These officers, whose names were identified, were not “undercover officers.”

Defendants do object to identifying any “undercover officers.” Unlike plain clothed officers assigned to an intelligence team for the day of a particular event, “undercover officers,” if utilized, conduct on-going investigations to monitor and report on individuals and groups who may be planning actions that threaten property or persons or otherwise violates the law. Unlike officers in plain clothes, “undercover officers” do not carry MPD issued service weapons, do not take law enforcement action while acting in an undercover capacity and take precautions not to identify themselves as police officers. Their operation (and safety) depends on their ability to ensure their anonymity.

Defendants object to identifying any “undercover officers” that may have been assigned to investigations conducted to aid in security preparations for the Presidential Inauguration because any such identification is irrelevant and not likely to lead to admissible evidence and is protected from disclosure by the law enforcement privilege. For these same reasons, the District defendants object to producing intelligence reports and the Intelligence Operational Plan developed for the Presidential Inauguration.

Similar to the discovery filed against the federal defendants, plaintiffs’ requests for intelligence information from the District defendants is overly broad and not at all calculated to lead to admissible evidence. Defendants, as indicated above, have provided the names of all MPD officers who were detailed to intelligence teams on the day of the Inauguration as well as a redacted “Running Resume” of their reports.

Any “undercover investigation” that may have been conducted and intelligence plan prepared in advance of the Inauguration is not relevant to the actions plaintiffs, in their amended complaint, allege were taken against them at the 14th Street checkpoint, at 14th and K Streets and at the Navy Memorial. Plaintiffs claim that this information may have been used to inform, influence or direct the government’s conduct toward them. Yet, the District defendants do not assert that their actions were influenced or based upon intelligence reports, plans or similar information. Indeed, Assistant Chief Broadbent, in his Declaration, clearly states that “[N]othing in the Intelligence Operational Plan or the intelligence reports authorizes, sanctions or directs the use of O.C. spray by Metropolitan Police Department officers in the manner alleged in the complaint filed in this civil action. Neither the Intelligence Operational Plan nor the intelligence reports authorize, sanction or direct undercover officers to suggest or take any illegal action. Broadbent Declaration at paragraph 5.

Moreover, the events at 14th and K Streets, NW, were based on reports of a large crowd of demonstrators marching in the street, south on 14th Street, without a permit, and reports of cars and/or property being damaged, and vending machines being thrown into the street. (See, e.g., attached Destruction of Property Incident Report – Attachment A). Similarly, the District defendants do not assert and the complained about events at the 14th Street checkpoint were not based on or influenced by any earlier intelligence information.

At mass demonstrations, particularly an Inaugural event subsequent to a deeply divided and controversial Presidential election, police must prepare for the worst and hope for the best. Police in their planning (and comments) cannot ignore the violence and destruction that has over the past several years occurred at demonstrations in the United States, Canada and Europe.

Plaintiffs, however, apparently perceive such planning as animus or hostility toward protesters or protest groups. Plaintiffs’ mistaken perception does not make the intelligence information sought relevant to the claims raised in this lawsuit and is not a basis for compelling production.

The District defendants agree with the federal defendants’ suggestion, in their opposition to plaintiffs’ motion to compel discovery as to them, that the Court should attempt to resolve issues of relevance before addressing privilege claims. See, Freeman v. Seligson, 405 F.2d 1326 (D.C. Cir. 1968) and other authority cited in the federal defendants’ opposition at page 9. (Moreover, since there may be some intelligence or other privileged information that the federal and District defendants have in common, the issue as to privilege should be addressed as to both defendants at the same time).

Nonetheless, defendants do address herein some of the documents referenced in plaintiffs’ motion to compel that in addition to being irrelevant or otherwise objectionable are protected from disclosure by the law enforcement privilege.

B. Intelligence and Surveillance Records are Protected from Disclosure by the Law Enforcement Privilege.

Even if these documents were relevant or likely to lead to admissible evidence, defendants’ objections should be sustained because, as described below, pursuant to the law enforcement privilege, the public interest in non-disclosure outweighs plaintiff’s stated need for these documents. See e.g., Collins v. Shearson/American Express, Inc., 112 F.R.D. 227, 229-30 (D.D.C. 1986) (when law enforcement privilege is asserted, Court must look beyond whether documents are simply relevant).

There is a public interest in and privilege against disclosure of documents that would tend to reveal law enforcement techniques, procedures or sources. Black v. Sheraton Corporation of America, 564 F.2d 531, 545, 546 (D.C. Cir. 1977); Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341, 1342 (D.C. Cir. 1984).

The law enforcement privilege “shares with those typically labelled ‘executive’ a justification rooted in the need to minimize disclosure of documents whose revelation might impair the necessary functioning of a department of the executive branch. The argument here – that law enforcement operations cannot be effective if conducted in full public view – is analgous to that made on behalf of intra-agency deliberations.” Black, supra, 564 F.2d at 541, 542.

The need for such a privilege is also recognized in the Freedom of Information Act, which contains an exemption for investigatory records, 5 U.S.C. § 552(b) (7). Indeed, decisions in this and other circuits have recognized that this exemption protects the disclosure of information where release might create a risk of circumventing the law. For example, in PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 250-251 (D.C. Cir. 1993) the Court held that documents not generated in the course of a particular investigation, including portions of a FBI manual, were exempt because the FBI demonstrated that the release of the information might create a risk of circumventing the law. Similarly, this Court in Tax Analysts v. IRS, 1999 U.S. Dist. LEXIS 19514 (D.D.C. 1999) found that the release of certain IRS documents were exempt because their release could be exploited to circumvent enforcement of the tax laws. See also, Becker v. IRS, 34 F.3d 398, 405 (7th Cir. 1994) (document discussing investigative techniques used by IRS held exempt); Ferguson v IRS, 1990 U.S. Dist. LEXIS 15293 (N.D. Cal. Oct. 31, 1990) (portion of IRS manual which revealed investigatory techniques held exempt). Admittedly, this is not a Freedom of Information Act (FOIA) case, however, a FOIA case, unlike civil discovery, neither requires a plaintiff with an actual injury nor a showing that the requested information is relevant to a party’s claims or defenses.

Assertion of the law enforcement privilege “requires: (1) a formal claim of privilege by the `head of the department’ having control over the requested information; (2) assertion of the privilege based on actual personal consideration by that official; and (3) a detailed specification of the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege.” Landry v. Federal Deposit Insurance Company, 204 F.3d 1125, 1135 (D.C. Cir. 2000).

Here, Assistant Chief of Police Alfred Broadbent has properly asserted the privilege as to the Intelligence Operational Plan, intelligence reports and the training videotape on crowd control formations.

See attached Declaration of Alfred J. Broadbent – Attachment B. Chief Broadbent claimed the privilege based on his personal familiarity with and review of these documents and clearly specifies the documents for which the privilege is being claimed and why they properly fall within the scope of the privilege. Just as the District defendants have sought to resolve or at minimum narrow discovery disputes, the assertion of the law enforcement privilege has been made with deliberate consideration and in an appropriately specific manner.

Once the privilege is properly asserted, the burden shifts to the party seeking the documents to demonstrate a compelling need for disclosure and the lack of harm that would result from disclosure. Black, supra, 564 F.2d at 545; Friedman, supra, 738 F.2d at 1341; Kay v. Pick, 711 A.2d 1251, 1256 (D.C. App. 1998); Collins, supra, 112 F.R.D. at 228. The court must then balance the public interest in non-disclosure against the stated need for the documents. Once the privilege is properly asserted, the Court “must look beyond the issue whether the documents sought are simply relevant. If that were the only test, the rules of privilege would be relatively meaningless. “ Collins, supra, 112 F.R.D. at 230. Plaintiffs must demonstrate a compelling need for the information. In Re: United Telecommunications, Inc. Securities Litigation, 799 F. Supp. 1206, 1208, 1209 (D.D.C. 1992).

The “intelligence reports” and other documents at issue herein are described in Chief Broadbent’s Declaration. For example, Chief Broadbent indicates that “intelligence reports” could include information on confidential investigations conducted to identify, monitor and report on persons and/or groups that may be planning to disrupt an Inaugural event(s), threaten property or public safety, or otherwise violate the law. They could also provide confidential intelligence information from a consortium of federal and local law enforcement agencies that were coordinating security preparations for Inaugural events, or other intelligence information derived from law enforcement sources or public sources such as the Internet.

Chief Broadbent indicates that these “intelligence reports” were confidential and reviewed by only three MPD officials other than himself. Declaration at 1 and 2.
Further, Chief Broadbent describes how disclosure of these documents might impair and thwart the Department’s ability to prepare for and provide security at demonstrations and jeopardize and/or chill the Department’s intelligence gathering capability. As Chief Broadbent indicates in his Declaration, “[P]roduction of the Intelligence Operational Plan and intelligence reports would disclose law enforcement intelligence gathering methods and techniques, including those utilized in the design, operation and implementation of the security plan for Inaugural events.”

Further, the Chief indicates that “[D]isclosing the Department’s intelligence reports, Intelligence Operational Plan or the identity of any undercover officers that may have been conducting an investigation …, would undermine significantly the Department’s ability to plan for and provide security at mass demonstrations. Disclosure would create a huge void in the Department’s intelligence gathering capability, threaten undercover officer’s physical safety and expose citizens, visitors, and demonstrators themselves to increased risk of violence, physical injury, and property damage. Disclosing such information could forewarn suspects and suspect groups, providing them with sensitive law enforcement information, including possible strategies, procedures and directions for confidential investigations. Broadbent Declaration at 2 and 3.

Disclosure of information received from other law enforcement agencies or from the consortium of federal and local agencies that collaborated on security preparations for the Presidential Inauguration (as well as any information derived from private citizens) would discourage such collaborative law enforcement efforts.
Similarly, Chief Broadbent describes the Department’s training video tape on crowd control formations and declares that disclosure of the techniques and methods depicted on this video tape could assist protesters and protest groups to counteract these techniques, undermining the Department’s ability to maintain crowd control.

The public interest in non-disclosure of the challenged documents is particularly high in this instance “because many of the individuals and groups that protested at the Inauguration regularly engage in demonstration activity and could counter intelligence gathering methods and security preparations, if known. …

Furthermore, the violence encountered during demonstrations in other countries and cities -- Seattle, Quebec, Prague, Genoa and Australia -- coupled with the current concerns about domestic terrorism, underscores the need to maintain the confidentiality of these documents. Access to the Metropolitan Police Department’s Intelligence Operational Plan and intelligence reports would enable future protest groups to more effectively counter such plans as would production of the videotape on crowd control formations.

The Inauguration, the World Bank/IMF meetings, as well as other politically controversial meetings, are regularly occurring events in Washington, D.C. and disclosure of law enforcement intelligence gathering techniques and methods used to plan and provide security, and of training videotapes that depict law enforcement protective measures and techniques will compromise law enforcement’s ability to provide security for such events in the future and jeopardize the Department’s intelligence gathering capability.”

Broadbent Declaration at 3 and 4.
Many of the remaining illustrative factors are not particularly relevant to this situation. Both factual data and evaluative information is contained within the documents at issue and while the Presidential Inauguration has concluded, demonstrations in Washington, D.C. are regularly occurring events.

The public interest in non-disclosure cannot, under these circumstances, be disregarded merely because the Inauguration of the 54th President has concluded. See, e.g., Black, supra, 564 F.2d at 546 (public interest in non-disclosure not disregarded despite a ten year lapse since the investigation).

On balance, the public interest in non-disclosure of the Intelligence Operational Plan, intelligence reports and the training videotape on crowd control formations outweighs plaintiff’s stated need for these documents, even if the Court were to find these documents relevant or likely to lead to admissible evidence.

As indicated above, the District defendants join in the federal defendants’ suggestion that issues of relevance be addressed before addressing privilege claims, and, further, suggest that the federal and District defendants’ claims of privilege be addressed at the same time (to minimize the risk of inconsistent ruling regarding any documents or information these parties may have in common or may have obtained from the other).

If there are documents at issue herein that the Court concludes are relevant then, as the federal defendants noted in their opposition to plaintiffs’ motion to compel discovery from them, in camera inspection should be utilized where privilege is asserted as a basis for withholding information. Black, supra, 564 F.2d at 543-544.

The District of Columbia has provided the parties with a detailed document production index and privilege log and, pursuant to plaintiffs’ request, a redaction log, which, for the most part, sets forth a page by page description of any redaction and the basis for the redaction.

Defendants’ revised redaction log, which accounts for the additional documents produced pursuant to plaintiffs’ July 18, 2002 letter to counsel, is included herein as attachment C. (The District of Columbia’s Supplemental Document Production Index and Privilege Log is attached to plaintiffs’ motion to compel, tab 6). A review of these logs should, as set forth more fully in the below section, be sufficient to determine relevancy. Should the Court desire to review any redacted (or unredacted) document or document withheld in its entirety for in camera review, production can be accomplished.

5. Redactions Based on Relevancy Made on Produced Documents

While plaintiffs set forth examples of portions of subsequently produced documents that were once redacted as irrelevant or otherwise objectionable, they do not cite any examples of the documents that remain redacted because they are irrelevant. Instead, plaintiffs assert that to avoid a redaction by redaction review, defendants should be ordered to turn over all redacted material that plaintiffs contend is relevant, where no claim of privilege is made.

A review of the District of Columbia’s revised redaction log demonstrates that the remaining redacted documents are not relevant to plaintiffs’ claims.

For example, the only entry point at issue in plaintiffs’ amended complaint is the 14th Street checkpoint. The first document referenced in defendants’ Revised Redaction Log (Bates pages 181- 195) indicates that the entry point assignments and instructions (which are the same for each location) for the entry points on Pennsylvania Avenue between 13th and 14th Streets have been provided but that information for locations not referenced in plaintiffs’ complaint have not.

The next document (Bates pages 231 and 232) contains instructions to and a description of arrest teams used in mass arrest situations. Such teams were not utilized during the Inauguration as there were no mass arrests and these documents are, therefore, not relevant to plaintiffs’ claims.

With regard to the Outside Jurisdictions Operations Plan (Bates pages 256-268), the information that has been redacted includes the time the assigned units were to report to their post, the length of their tour of duty, the initial staging location and the location for officers’ breaks (break room).

Defendants did not redact information identifying the jurisdiction providing manpower and their area of responsibility when it was in a location referenced in plaintiffs’ complaint (from 7th to 9th Streets and from 13th to 15th Streets). Otherwise that information was redacted.

Information in the MPD Operations Plan (Bates pages 274-329) such as staging locations (areas police report to before moving to their area of assigned responsibility), location and phone number for the MPD Command Bus, the modes of transportation available to Civil Disturbance Units, general instructions for responding to individuals/groups utilizing improvised locking devices, and locations and procedures for prisoner control processing centers all have been redacted as none are relevant to plaintiffs’ claims. The area of assigned responsibility for each Civil Disturbance Unit has not been redacted.

The MPD Parade Manual (Bates pages 336-389) similarly provides manpower assignments and instructions for locations referenced in the plaintiffs’ complaint but redacts that information for locations that are not referenced. (Break room and staging area locations are not provided for any locations). Similar to the Operations Plan, modes of transportation available to Civil Disturbance Units, locations and procedures for prisoner processing, general instructions for responding to groups or individuals utilizing improvised locking devices and vehicle credentials have been redacted. The area of assigned responsibility for each Civil Disturbance Unit has not been redacted.

Limited redactions are made on the Synchronized Operations Command Center (SOCC) log (Bates pages 867-939). For example, participant instructions for logging on to the system and adding information are deleted. While substantive information that is being reported is rarely redacted (exceptions include the President and Vice President’s schedule) the identity of some public and law enforcement sources for reported information is occasionally redacted.

Also redacted are the identity or other identifying information for individuals arrested or stopped by the police, none of whom are the plaintiffs herein, staging locations, and contact phone numbers. The information that has been redacted is not relevant to any claim or defense raised herein.

Similar redactions were made on the Running Resume (Bates pages 1127-1141). Substantive information that is being reported is rarely redacted (exceptions include security information concerning a ballroom location and capacity and information regarding a parade route exit and the time for closing crossover gates), while the identity of some sources is occasionally redacted. Also redacted is the identity or identifying information for suspects stopped or arrested by the police (none of whom are plaintiffs herein). The information that has been redacted is not relevant to any claim or defense raised herein.
As indicated in the Revised Redaction Log,
redactions to the Civil Disturbance Response Plan (Bates pages 1247-1271) are, similarly, irrelevant and include information on procedure and provision of meals, staging locations and reporting times, transportation available to CDU platoons, instructions regarding response to mechanical or locking devices, the location of the command bus and a list of prisoner control vehicles and locations.

The MPD After Action Reports have been provided with two minor redactions, neither of which is relevant to plaintiffs’ claims, the location of the command centers and a recommendation regarding the number of available scooters (information which is also protected by the deliberative process privilege).

The information that has been redacted is not relevant to any claim or defense raised herein and is not likely to lead to admissible evidence, and production should not be compelled.

Conclusion

For all of the above-stated reasons, plaintiffs’ motion to compel discovery production from the District of Columbia should be denied.
Respectfully submitted,

ROBERT R. RIGSBY
Corporation Counsel, D.C.

JOHN C. GREENHAUGH
Senior Deputy Corporation Counsel
for Torts & Equity

_______________________________
ROBERT C. UTIGER [437130]
Deputy Corporation Counsel
Equity Division

________________________________
RICHARD S. LOVE [340455]
CHARLOTTE A. BRADLEY [388582]
MARTHA J. MULLEN [419036]
Senior Counsel, Equity Division
441 4th St., N.W. 6th Floor S.
Washington, D.C. 20001
(202) 724-6635
Attorneys for Defendant
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Defendant District of Columbia’s Opposition to Plaintiffs’ Motion to Compel Discovery Production from the District of Columbia was sent by facsimile and mailed postage prepaid to:
Carl Messineo, Esquire
Mara Verheyden-Hilliard, Esquire
Partnership for Civil Justice, Inc.
1901 Pennsylvania Avenue, N.W.
Suite 607
Washington, D.C. 20006

Eric A. Kuwana, Esquire
PATTON BOGGS, L.L.P.
2550 M Street, N.W.
Washington, D.C. 20037

Mark Nebeker
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W., Room 10-439
Washington, D.C. 20530

on this 30th day of July, 2002

______________________________
Richard S. Love
Senior Counsel