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At this point in the whole Pershing Park court mess, AG Peter Nickles is supposed to just play nice and hope the two big cases settle. Nickles offered up his problematic mea culpa and promised that settlements would be forthcoming. It appears his sweet talk has an expiration date.
Last week, plaintiffs lawyers in the Chang case filed an emergency motion to get the OAG to comply with a request to take a deposition. The plaintiffs lawyers wanted to depose a District official “regarding the District’s preservation or lack thereof of electronically stored materials, including e-mails.”
This deposition goes to the heart of the entire court mess. And it may be important since the D.C. Council hasn’t come close to investigating the Pershing Park discovery problems or the missing evidence in the case.
But the OAG decided to prevent such a deposition from taking place. The lawyers write in their motion:
“Two days before the deposition was to go forward, District counsel unilaterally and without cause announced that the deposition was cancelled, suggesting that it continues to believe its litigation strategy of discovery abuse can continue without consequences.”
More on this drama after the jump.
Plaintiffs lawyers go on to write:
“District council has also announced its intention to seek a protective order to block the deposition on the grounds that the deposition does not fall under the purview of the resumption of discovery ordered by the Court.”
Last minute deposition cancellations. Protective orders. This sounds like the OAG is reverting back to the stonewall tactics that got them in trouble with U.S. District Court Judge Emmet Sullivan.
The lawyers argue in their emergency motion:
“The District appears to be making the incredible suggestion that Chang counsel cannot question District witnesses or the District itself on whether relevant and responsive documents were destroyed or tampered with through formal discovery.”
The Chang plaintiffs argued in a subsequent filing:
“Only in passing does the District disclose its true intent: to prevent Plaintiffs from inquiring about the retention, preservation, destruction, or tampering with evidence…”
The OAG’s stance does not bode well for its own investigation into the missing evidence. This is further proof that the D.C. Council should step in.
At the last minute, and after much back and forth, plaintiffs lawyers were able to prevail. They were able to take their deposition on the discovery abuses. Stay tuned.
*photo by Darrow Montgomery.