Delays in Case of Race Bias Could Cost Secret Service

Source: WaPo

By Darryl Fears
Washington Post Staff Writer
Thursday, May 29, 2008; Page A17

After causing delays that have stalled a racial discrimination case for years, the Secret Service could be hit with a "default" judgment at a U.S. District Court hearing today in favor of the black agents who brought the suit.

The judge presiding over the case, Deborah A. Robinson, has already sanctioned the agency three times for dragging its feet in handing over racially charged e-mails shared by white Secret Service supervisors and for failing to search for documents as ordered by the court. She has also verbally reprimanded government lawyers after they revealed that a paralegal may have burned some documents that were ordered by the court.

Robinson could use stronger sanctions to punish the Secret Service at today's hearing, lawyers said. She could issue a summary judgment on behalf of the plaintiffs that would probably cost taxpayers millions of dollars, she could limit the amount of evidence the agency could use to defend itself against the allegations -- that supervisors routinely harassed black agents and refused to promote them to management positions -- or she could grant a request by the plaintiffs to try their case without any interference from the Secret Service's lawyers. The black agents sued the agency in 2000.

"In all the years I have been involved in big civil litigation," said Melissa N. Henke, one of the plaintiffs' attorneys, "I have never seen such egregious conduct by a party in the discovery phase of a case . . . to avoid providing the evidence that the other side is entitled to."



Read more: http://www.washingtonpost.com/wp-dyn/content/article/2008/05/28/AR2008052802949.html?hpid=moreheadlines

the discovery?

Rule 26. General Provisions Governing Discovery; Duty of Disclosure
<2> The most substantial rule, which guides the discovery process.

Subdivision (a) provides for automatic disclosure, which first was added in 1993. Disclosure requires parties to share their own supporting evidence without being requested to by the other party. Failure to do so can preclude that evidence from being used at trial. This applies only to evidence that supports their own case, not anything that would harm their case. For example, a plaintiff brings a case alleging a negligent accident where the defendant damaged the plaintiff's boat. The plaintiff would then be required to automatically disclose repair bills for his damaged property (Since this would only support his case) (26(a)(1)(c)).

Subdivision (b) is the heart of the discovery rule, and defines what is discoverable and what is limited. Anything that is relevant is available for the other party to request, as long as it is not privileged or otherwise protected. Under §1, relevance is defined as anything more or less likely to prove a fact that affects the outcome of the claim. It does not have to be admissible in court as long as it could reasonably lead to admissible evidence.

However, there are limits to discovery. §2 allows the court to alter the limits of discovery on the number of depositions, interrogatories, and document requests, if it determines that the discovery sought is overly burdensome, redundant, unnecessary, or disproportionately difficult to produce with respect to the importance of the case or specific issue. Enshrined in §3, the work-product doctrine protects tangible (and some intangible) items created in anticipation of the litigation (e.g., a memorandum from an attorney outlining his strategy in the case). Protecting work product is considered in the interest of justice because discovery of such work product would expose an attorney's complete legal strategy before trial. §4 allows discovery of experts whose opinions may be presented at trial, but limits discovery of experts not likely to testify during trial. §5 generally prohibits the discovery of any material legally privileged (attorney-client, doctor-patient, etc.), and requires the production of a "privilege log" which describes the privileged information or material in a way that allows others to see that (if) it is privileged, but does not divulge the privileged material.

http://en.wikipedia.org/wiki/Discovery_(law)

The persons bringing the suit are plaintiffs and the persons sued are the defendants.
Each party is entitled to discover applicable documents in the possession of the other. In the case of employment litigation, something I did for about 16 years, the employer is in possession of most of the relevant evidence, such as performance reviews, notes of discusions regarding the employees, etc.
I usually requested documents first in discovery and this helped me decided who I had to depose (interview under oath). The secret service's refusal to produce documents is probably holding up the rest of the case.

Discovery is supposed to go smoothly. Judges hate getting involved in disputes over the production of documents. It is not unusual for discovery motions to concern privilege issues -- whether a document is protected by attorney-client privilege and not subject to discovery. However, once a judge has heard a discovery motion and ordered the production of documents, it is very unusual for a plaintiff to have to file another motion for sanctions because the defendant refused to comply. A default judgment is a very severe sanction and usually reserved only if the defendant has defied a discovery orders at least two times. Even then, the judge is more likely to do something less drastic and perhaps strike a defense or preclude them from raising certain arguments.

I hope that helps.