7 Trial Lawyer • Summer 2023 See When Nothing Works p 8 individual federal agents. The named supervisor defendants intended to file motions to dismiss claiming they were immune from a lawsuit, refusing to consent to early discovery or a case planning meeting. The legal position advanced by the government was contrary to existing law in the Ninth Circuit. The court granted the motion for limited third party discovery for the purpose of identifying the John Doe Defendants. One month later, the government sought to limit the early discovery to a particular geographic zone and to only those line officers using force. The government sought to have the individual officers who randomly shot folks proceed anonymously, which the plaintiff argued “runs afoul of the public’s common law right of access to judicial proceedings.” “Anonymity is not appropriate here.” The ability of the public to identify officers promotes accountability and discourages police misconduct. Index Newpapers LLC v. City of Portland; Pettibone et al v. Trump et al, No. 3:20-cv-01464. There was no specific showing of why the officers should not be named. In the meantime, no discovery was forthcoming. The plaintiff had no idea which unnamed officer used force. On February 23, 2021, three months later, the court ordered the United States to identify all the officers using force inside the “protest zone” for eight discrete days in July 2020. The order included supervisory officer identification “within the chain of command” of the line officers using force. The court ordered the officers who shot and tear gassed citizens could proceed anonymously. Judge Immergut denied the plaintiff’s request to share all discovery with the plaintiffs in Pettibone and Index Newspapers. The plaintiff did eventually receive a spreadsheet of involved officers with “identifiers.” Between March 16 and June 23, 2021, the United States produced responsive information but it was limited to names of supervisory and patrol-level officers. The production did not include the location of the officers’ use of force, the date or time of the officers’ use of force, the nature or type of force used, or the address for service of summons of each individual officer. Absent that information, the plaintiff could not even determine in good faith who was involved in the incidents or how to serve them. To obtain information the United States failed to produce, the plaintiffs prepared Rule 30(b)(6) deposition subpoenas serving them on the United States. On August 27, 2021, the United States advised the plaintiffs the subpoenas were “legally ineffective” and they were unwilling to “voluntarily engage in the proposed discovery.” On October 5, 2021, the date for subpoena response and the Rule 30(b)(6) deposition, the plaintiffs received nothing. The plaintiffs requested the United States produce, at the very least, the information previously ordered by the court in a new amended complaint. The United States refused to do so. The government resisted service of process. Service on defendants in D.C. was complicated by the inter-relationship between the Federal Rules, Oregon Rules and D.C. rules. The plaintiff sought alternative service by mail via First Class Mail and Certified Return Receipt. The government lawyers had no authority to accept service and most government buildings were closed due to COVID restrictions. Judge Immergut denied the motion for alternative service. On May 4, 2021 the government lawyer who represented the United States finally accepted service for two of the named defendants. Eventually mail service was permitted for service in Washington, D.C. A brick wall On October 25, 2021, the plaintiff moved to compel production of information to allow service on the anonymous officer. This was nearly a year after the case was filed. We named Chad Wolf, acting secretary of Homeland Security, and Ken Cuccinelli, acting deputy secretary of Homeland Security initially. These two "top managers' filed motions to dismiss claiming they were "too distant" from the actions and decisions in the federal response. Judge Immergut agreed contrary to federal law. The judge dismissed defendants Wolf and Cuccinelli finding they were immune from July 28, 2020. Tear gas deployed multiple times on peaceful protesters.
RkJQdWJsaXNoZXIy MTY1NDIzOQ==