Chang v. United States of America

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RAYMING CHANG, et al.,

Plaintiffs,

v. Civil Action No. 02-2010 (EGS/JMF)

UNITED STATES, et al.,

Defendants.

MEMORANDUM ORDER

This Memorandum Order ties up some loose ends about three documents that plaintiffs

seek from the District and as to which the District claims either that they are privileged or that

they are irrelevant.

1. Thomas Koger Materials

Earlier in this case, when attorney Koger represented the District of Columbia, Peter

Nickles, his then superior and Attorney General of the District of Columbia, publicly criticized

his actions and derelictions. The documents at issue pertain to the determination by the Attorney

General to fire him and his subsequent suspension of Koger for 45 days in lieu of firing him. I

can think of no privilege that attends these documents that the District could claim. Indeed, they

were shared with the President of the union of which Koger was a member. Moreover, Koger is

a central player in this case, and while I have no desire to infringe his privacy unnecessarily, the

circumstances of his potential termination and his statements in response to the District’s notice

of the intention to fire him are so crucial to the resolution of this case that his privacy must yield

to their obvious relevance. I will therefore make this documents available to the plaintiffs.

2. Costas/Harris E-Mails In these e-mails, James Costas, who testified at the hearing held before me on

10/13/2010, transmits an attached inventory of what appear to be videotapes to Ronald Harris, an

attorney with the Office of the General Counsel of the Metropolitan Police Department.

Costas’s e-mail does not contain any information that is being transmitted to Harris in

confidence and certainly does not seek legal advice or legal services. Indeed, because Harris

represents the Police Department, Costas is a private contractor, and nothing in either man’s

testimony suggests that there ever was an attorney-client relationship between them, I see no

basis for a claim of attorney-client privilege. Costas’ e-mail and the attached inventory certainly

do not disclose any of Harris’s mental processes. There is however one sentence in Harris’s e-

mail that seems to disclose his and another attorney’s mental processes and I have excised it.

Plaintiffs should be aware that the excision is innocuous and unfortunately does not cast any

light on the videotapes used during the September 2002 demonstrations. As plaintiffs will

further note, Costas’ inventory does not list any videotapes for September 2002.

3. Jones E-Mails

A question arose at the conclusion of the hearing when counsel for the plaintiffs asserted

that counsel for Doug Jones, who used to work in some capacity for the District of Columbia,

indicated that counsel for the District of Columbia had never asked Jones to search for a certain

e-mail. By minute order dated 11/17/2010, I directed counsel for the District, Monique Pressley,

to contact counsel for Jones in order to have Jones search for and produce the e-mail to

plaintiffs’ counsel. Counsel for the District did so and the withheld e-mails now at issue consist

of District’s counsel’s e-mail to Jones and Jones’ reply.

2 First, Jones’ e-mail does not disclose Pressley’s work product and there is no attorney-

client privilege between them since Jones seems to now be employed by Comcast. Second,

while some portions of Pressley’s e-mail do reflect her mental processes I have excised those

sections and will release the rest.

SO ORDERED.

John M. Digitally signed by John M. Facciola DN: c=US, st=DC, ou=District of Columbia, email=John_M._Facciola@dcd.uscour

Facciola ts.gov, o=U.S. District Court, District of Columbia, cn=John M. Facciola Date: 2010.12.30 11:16:07 -05'00' __________________________________ JOHN M. FACCIOLA UNITED STATES DISTRICT COURT JUDGE