UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PAMELA GOODWIN, et al.,

Plaintiffs, Civil Action No. 21-cv-806 (BAH) v. Chief Judge Beryl A. Howell DISTRICT OF COLUMBIA, et al.,

Defendants.

MEMORANDUM OPINION

The eight individual plaintiffs, who separately convened in Washington, D.C., on June 1,

2020, to protest police brutality and misconduct, Compl. ¶¶ 1–2, 23, ECF No. 1, initiated this

action on March 25, 2021, raising claims, under

, for violations of the First and

Fourth Amendments, and for assault and battery and negligence per se against defendants, the

District of Columbia (“the District”), Peter Newsham, then-Chief of the Metropolitan Police

Department (“MPD”) at the time of the events at issue, and John Doe Officers 1-50 (“the Doe

MPD Officers”), who are yet to be identified MPD officers and supervisors, for allegedly using

excessive force and retaliatory abusive acts against peaceful protesters, thereby causing

plaintiffs’ injuries,

, 18–20. Defendants have not yet filed any responsive pleading to the

Complaint. See Min. Order (Apr. 16, 2021) (granting defendants’ unopposed motion for

extension of time to respond until May 19, 2021).

To ascertain the identities of the Doe MPD Officers, plaintiffs now move for leave to

conduct limited expedited discovery and seek an “order requiring Defendant District of

Columbia to provide expedited discovery sufficient to identify the [Doe MPD Officers] who

used force against Plaintiffs as alleged in their Complaint, by May 17, 2021,” so that plaintiffs

1 are able to “preserve their ability to bring any claim for assault and battery against the identified

officers by the June 1, 2021 statute of limitations” deadline. Pls.’ Mot. Leave to Conduct

Limited Expedited Discovery for the Purpose of Identifying “John Doe” Defs. (“Pls.’ Mot.”) at

1, ECF No. 11. The District opposes this motion. For the reasons provided below, the plaintiffs’

motion is granted.

I. BACKGROUND

Only the factual and procedural background relevant to resolving the pending motion for

leave to conduct limited expedited discovery is summarized here. The complaint alleges that

plaintiffs joined others in several District locations on June 1, 2020, to protest peacefully against

police brutality and misconduct in the wake of the murder by police of George Floyd in

Minnesota and of Tony McDade in Florida. Compl. ¶¶ 21–25. Though the protests were

peaceful, plaintiffs allege that Doe MPD Officers, at the direction of defendant Chief Newsham,

engaged in conduct resulting in their injuries. Specifically, plaintiffs Goodwin, Lane, Lazo,

Medina-Tayac, Pearlmutter and Surio participated in a protest near the White House,

,

while plaintiffs Remick and Troper separately attended a vigil for Tony McDade at different

location, but then “marched alongside other protesters toward the demonstration near the White

House,”

. Later, as the demonstration at the White House was dispersing, plaintiffs

headed northwest with other protesters, first toward Thomas Circle and then toward 14th Street

NW, to return home.

. While on 14th Street NW, MPD officers first confronted

plaintiffs, and “used aggressive intimidation tactics to try to prevent [plaintiffs and protesters]

from engaging in their protest activities,”

, including officers preventing protesters from

accessing bottles of water from stations intended to benefit protesters, closely following

protesters with police cars and trying to drive police cars through the group of protesters,

2 As plaintiffs and other demonstrators approached 14th Street NW and Florida Avenue,

MPD officers surrounded protesters, issuing commands to disperse or return home but, at the

same time, blocking side streets to prevent plaintiffs and other protesters from leaving the police

perimeter.

. Plaintiffs attempted to move with the crowd along 14th Street NW within the

police perimeter, but MPD officers “forced the group to turn west down Florida Avenue, south

down 15th Street NW, and then onto a side street, Swann Street NW, between 14th and 15th

Streets.”

.

Once the demonstrators, including plaintiffs, were herded onto Swann Street, MPD

officers physically surrounded and enclosed the group, preventing anyone from leaving—a

policing technique referred to as “kettling.”

¶¶ 36–37. At this point, without “provid[ing]

Plaintiffs or other demonstrators time to disperse, indicat[ing] a route for dispersal, or

inform[ing] them that refusal to disperse would subject them to arrest,”

, a group of MPD

officers, “dressed in riot gear and armed with shields, batons, pepper spray and other

weapons,”

, “almost immediately, and without warning, brandished their shields and

batons and began swinging them toward Plaintiffs and other demonstrators,” while yelling

“move back” to enclose plaintiffs and demonstrators in an increasingly smaller space,

. While blocked on Swann Street, MPD officers attacked plaintiffs by “deploying excessive

amounts of pepper spray at them,”

, causing plaintiffs to experience “intense burning

sensations in their lungs, eyes, faces, throats, and chests; severe coughing and difficulty

breathing; and disorientation,”

. One MPD officer violently pushed other demonstrators

against plaintiff Medina-Tayac, making him fall to the ground, which led to him being stepped

on,

; another MPD officer “repeatedly struck Plaintiff Remick with a baton, landing

blows with sufficient force to cause bruising on their arms and back,”

; and another MPD

3 officer “struck [plaintiff Surio] in the chest and abdomen with a baton,” causing “contusions,

welts, and bruising,”

.

Plaintiffs Medina-Tayac, Pearlmutter, Remick, and Surio, were then arrested and

detained between two to four hours on Swann Street,

, in tight and

painful zip ties,

, before being transported to a police academy facility, where

plaintiffs Medina-Tayac and Pearlmutter were forced to stand outside for almost six hours

pending processing,

. While waiting, plaintiff Surio asked to be taken to the hospital

for her injuries, but MPD officers discouraged her from seeking medical attention before

relenting and taking her for treatment.

¶¶ 75–76. Also, during this period, MPD officers did

not provide adequate food, teased and taunted protesters about their refusal to provide food or

water,

, and denied plaintiffs Medina-Tayac and Pearlmutter bathroom access for eight

hours,

. Plaintiff Remick was denied food, water and bathroom access for four

hours,

; and plaintiff Surio had no access to food while in custody, which meant she was

not able to eat until her release at 10:00 AM the morning following her arrest,

.

Unable to identify the individual MPD officers and supervisors responsible for these

actions on 14th Street NW and Swann Street NW, and at the police academy facility, plaintiffs

identified them as “John Doe Officers 1–50” in the complaint.

. Plaintiffs served the

District with their complaint promptly on March 26, 2021 and simultaneously asked the District

to “provide the names of the John Doe defendants identified in Plaintiffs’ Complaint.” Pls.’ Mot.

at 2. Specifically, plaintiffs requested, by April 9, 2021, the names of the: “(1) officers

participating in the arrest or seizure of Plaintiffs; (2) officers involved in transporting and

processing arrestees from the 1400 block of Swann Street NW on June 1, 2020; (3) officers who

used force, deployed pepper spray or completed use of force reports for actions taken on the

4 1400 block of Swann Street NW on June 1, 2020; (4) officers about whom a complaint for use of

excessive force was filed for actions taken on the 1400 block of Swann Street NW on June 1,

2020; and (5) supervisory officers on the 1400 block of Swann Street NW and the Maurice J.

Turner, Jr., Metropolitan Police Academy (where Plaintiffs were transported for processing) on

June 1, 2020.” Pls.’ Mot. at 2–3; see Pls.’ Mot., Ex. 1, Letter from Pls.’ Counsel to the District

of Columbia Off. of Att’y Gen. (“OAG”) (Mar. 26, 2021) (“Pls.’ Letter”) at 1–2, ECF No. 11-1.

Initially, the District declined to provide plaintiffs with any of the requested information,

describing the requests as “far too broad and burdensome,” and suggested that the parties “might

be able to work something out” if the requests were narrowed. Pls.’ Reply to District’s Opp’n to

Pls.’ Mot. (“Pls.’ Reply”), Ex. A, Email from District of Columbia OAG to Pls.’ Counsel (Apr.

8, 2021) (“April 8, 2021 Email”), ECF 14-1. During the subsequent conferral process, the

District agreed to provide the names of the officers who arrested plaintiffs, transported them for

processing, and the supervisors present during the events of June 1, 2020, but declined to provide

the names of officers who filed use of force reports or had force-related complaints lodged

against them. See Pls.’ Reply, Ex. B, Email Exchange between the District of Columbia OAG

and Pls.’ Counsel (Apr. 15–21, 2021) (“April 15–21, 2021 Emails”) at 5–6, ECF No. 14-2; Pls.’

Mot at 3; Def. District of Columbia’s Opp’n to Pls.’ Mot. (“Def.’s Opp’n”) at 2, ECF No. 13.

In response, plaintiffs noted that information about “who used force may be even more

important [than the other discovery sought] for amending [plaintiffs’] complaint,” April 15–21,

2021 Emails at 5, and the District agreed to be “open to considering” plaintiffs’ suggestions

about how the District could provide “relevant information [about] the identities of the officers

who used force against [plaintiffs] . . . in a way that is useful without having to engage in a

burdensome process,”

. To this end, plaintiffs promptly made clear that the requests for

5 use of force reports and excessive force complaints were the narrowest terms plaintiffs could

propose without knowing “what information [the District has],” but indicated plaintiffs would be

open to considering “anything that [the District thought] would be more narrow than what

[plaintiffs had] asked for.”

. Plaintiffs unsuccessfully attempted to schedule a final phone

call with counsel for the District on April 22, 2021, Pls.’ Reply at 3, ECF No. 14, and then filed

this motion for leave to conduct limited discovery, which motion became ripe for resolution on

May 7, 2021.

II. LEGAL STANDARD

Typically, “[a] party may not seek discovery from any source before the parties have

conferred as required by Rule 26(f), except . . . when authorized . . . by a court order.” FED. R.

CIV. P. 26(d)(1). “In cases involving as-yet-unknown defendants, in which the plaintiff cannot

serve its complaint–much less confer with the defendant–without obtaining identifying

information from a third party, ‘the only potential avenue for discovery is [a court order under]

Rule 26(d)(1).’” Strike 3 Holdings, LLC v. Doe (“Strike 3”),

(D.C. Cir.

2020) (alteration in original) (quoting AF Holdings, LLC v. Doe,

(D.C. Cir.

2014)). “A district court’s discretion to order discovery, whether before or after the parties have

conferred, is cabined by Rule 26(b)’s general limitations on the scope of discovery,” permitting

“discovery only of nonprivileged materials that are ‘relevant to [the] party’s claim or defense and

proportional to the needs of the case.”

(alteration in original) (quoting FED. R. CIV. P.

26(b)(1)).

Upon finding that requested discovery is relevant, Rule 26’s proportionality prong

“requires district courts in all discovery matters ‘to consider a number of factors potentially

relevant to the question of undue burden,’ including: (1) whether the discovery sought is

6 ‘unreasonably cumulative or duplicative’; (2) whether the discovery sought ‘can be obtained

from some other source that is more convenient, less burdensome, or less expensive’; and (3)

whether the discovery sought is ‘proportional to the needs of the case,’ taking into account ‘[1]

the importance of the issues at stake in the action, [2] the amount in controversy, [3] the parties’

relative access to relevant information, [4] the parties’ resources, [5] the importance of the

discovery in resolving the issues, and [6] whether the burden or expense of the proposed

discovery outweighs its likely benefit.’” Buzzfeed, Inc. v. United States Dep’t of Justice,

(D.D.C. 2018) (first quoting Watts v. SEC, 482 501, 509 (D.C. Cir. 2007); and

then quoting FED. R. CIV. P. 26(b)(1), (2)); see also Strike 3,

(noting that, under

Rule 26, “[c]ourts are directed to assess proportionality by reference to” these factors); FED. R.

CIV. P. 26(b). 1

III. DISCUSSION

Plaintiffs argue that the applicable Rule 26 standard is “easily satisf[ied]” such that their

requests should be granted. Pls.’ Mot. at 5. The District counters that plaintiffs’ requested

1 Federal Rule of Civil Procedure 26(b) used to include a “good cause” standard for court-ordered discovery with a scope broadly defined by “the subject matter involved in the action.” See FED. R. CIV. P. 26(b)(1) (2014) (“For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”). The 2015 amendments eliminated Rule 26(b)’s provision “authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action,”

advisory committee’s note to the 2015 amendment, and “replaced it with the overarching relevance and proportionality standard,” Strike 3,

n.2; see also In re Clinton,

, 114 n.2 (D.C. Cir. 2020) (noting that 2015 Amendment “‘deletes the former provision authorizing the court, for good cause, to order discovery of any matter relevant to the subject matter involved in the action’” and “narrowed” Rule 26) (quoting FED. R. CIV. P. 26 advisory committee’s note to the 2015 amendment). Despite this rule change, the District urges application of the good-cause standard, including consideration of “(1) whether a preliminary injunction is pending; (2) the breadth of discovery requests; (3) the purpose for requesting the expedited discovery; (4) the burden on defendants to comply with the requests; and (5) how far in advance of the typical discovery process the request was made.” Def.’s Opp’n at 2–3 (quoting Attkisson v. Holder,

(D.D.C. 2015) (quoting Guttenberg v. Emery,

(D.D.C. 2014))). Plaintiffs point out that the District’s reliance on Attkinson is misplaced, but also contend that they succeed under either standard, see Pls.’ Mot. at 4 n.2, since (1) the first Attkisson factor is irrelevant because no preliminary injunction is pending, Pls.’ Reply at 7; (2) the requested discovery is not overly broad or overly burdensome, id.; and (3) the purpose of the expedited discovery requests to identify Doe MPD Officers prior to the expiration of the statute of limitations is to prevent the “irreparabl[e] harm[ that would occur] without expedited discovery,”

at 9 (quoting Attkisson,

). Despite the amount of ink spilled by the parties on application of the Attkisson factors, the factors relevant to the current relevance and proportionality standard is applied here.

7 expedited discovery is “too broad,” Def.’s Opp’n at 3, “burdensome,” id. at 5, and not justified,

id. at 6 (contending plaintiffs’ reason for seeking expedited discovery “is not persuasive”).

Plaintiffs have the better arguments here, as demonstrated by review of the express factors set

out in Federal Rule of Civil Procedure 26(b).

A. Relevance of Use of Force Information About Doe MPD Officers

When a plaintiff seeks “immediate, court-ordered discovery to identify an anonymous

defendant,” courts need only “determine whether the plaintiff should have the opportunity to

name that defendant in the first place.” Strike 3,

. It is “well established that

plaintiffs are permitted to proceed against John Doe defendants so long as discovery can be

expected to uncover the defendant[s’] identity.”

(citing Newdow v. Roberts,

,

1010–11 (D.C. Cir. 2010)). For this reason, plaintiffs in analogous proceedings have been

permitted to proceed with limited expedited discovery prior to the parties’ discovery planning

conference required under Federal Rule of Civil Procedure 26(f). See, e.g., Order, Del Carmen

Salama-Tobar v. D.C., Civil Action No. 21-cv-500 (CJN) (D.D.C. Mar. 8, 2021) (granting

plaintiffs’ motion for expedited discovery to serve subpoenas and interrogatories in order to

identify John Doe Officers); Min. Order (Nov. 27, 2019), Robinson v. Hardy, Civil Action No.

19-cv-3070 (CJN) (D.D.C. Nov. 27, 2019) (granting plaintiffs’ motion for leave for expedited

discovery to subpoena defendant for the limited purpose of seeking name and contact

information for defendant John Doe).

The expedited discovery plaintiffs seek is cabined to a list of MPD officers who filed use

of force reports or have force-related complaints against them related to the events at the 1400

block of Swann Street NW on June 1, 2020. This discovery bears directly on plaintiffs’ assault

and battery allegations and is “necessary to reveal the defendant[s’] identiti[es] and [allow

plaintiffs] to begin litigating” their claims. Strike 3,

. This relevance 8 consideration weighs heavily in favor of granting plaintiffs prompt expedited access to this

information before expiration of the limitations period bars them from naming the Doe MPD

Officers, who allegedly engaged in assault and battery and also violations of § 1983. See Compl.

¶¶ 99–101 (alleged violation of § 1983 against John Doe Officers 1-50 for use of “excessive and

unreasonable force, []under color of state law” by, inter alia, “trapping, deploying pepper spray

against, and physically assaulting Plaintiffs”).

The District contends that plaintiffs’ requests for the names of “all officers ‘who used

force, deployed pepper spray or completed use of force reports for actions taken on the 1400

block of Swann Street NW on June 1, 2020,” is overbroad and not narrowly tailored to those

“officers who used force against Plaintiffs.” Def.’s Opp’n at 3 (emphasis in original) (quoting

Pls.’ Mot. at 2). As support, the District distinguishes plaintiffs’ requests as insufficiently

specific compared to the cases on which plaintiffs rely, where the requests “were seeking to

identify the owners of specific IP addresses that were directly linked to alleged copyright

infringement.” Id. at 4 (emphasis provided) (citing Strike 3,

; Malibu Media,

LLC v. Doe,

(D.D.C. 2016); Exquisite Multimedia, Inc. v. Doe, No. 11-

1976 (RWR/JMF),

at *1 (D.D.C. Jan. 19, 2012); and Warner Bros.

Records v. Doe,

(D.D.C. 2007)). The District’s distinction might be

determinative if laser-targeted specificity was the applicable standard for relevancy in the context

of identifying the proper defendant, but it is not, as the D.C. Circuit’s recent decision in Strike 3

makes amply clear.

Certainly, plaintiffs may not “‘abuse[] the discovery process’ by seeking irrelevant

information” if they have “no ‘realistic chance of successfully suing’ the defendant.” Strike 3,

964 F.3d at 1210–11 (quoting AF Holdings LLC,

). Yet, information may qualify

9 as relevant even if not admissible, FED. R. CIV. P. 26(b)(1), and if it has “any tendency to make a

fact more or less probable than it would be without the evidence” and “the fact is of consequence

in determining the action,” FED. R. EVID. 401. In Strike 3, the D.C. Circuit reversed the district

court’s denial of plaintiff’s requested discovery of subscriber information for the IP address used

to allegedly download and infringe a copyrighted movie based on “the risk that someone other

than the IP address subscriber with access to the IP address—such as a family member or

roommate—may have been responsible for the alleged infringement.” Strike 3,

. The Circuit found that this reasoning “misstates the relevant inquiry when a plaintiff seeks

immediate, court-ordered discovery to identify an anonymous defendant,”

, noting

“[a]t this stage, the court is not asked to pass judgment on the strength of the plaintiff’s

allegations against the defendant, but to determine whether the plaintiff should have the

opportunity to name that defendant in the first place,”

Thus, “[t]he mere fact that

discovery may demonstrate that the subscriber is not the proper defendant is no basis to close the

courthouse doors before Strike 3 can step inside.”

(emphasis in original). Since the

Court “[could not] conclude there [was] no ‘realistic chance’ the discovery Strike 3 sought

[would] yield information relevant to its suit or that Strike 3 could not state a plausible claim

against the IP address subscriber if the suit reaches the Rule 12(b)(6) phase,” the requested

discovery was appropriate and the denial was an abuse of discretion.

Similarly here, plaintiffs’ requests are realistically tethered to uncovering the identities of

the Doe MPD Officers on the scene at the locations where plaintiffs claim they suffered injury on

June 1, 2020, just as the requested discovery at issue in Strike 3 was intended to get closer to the

identity of the person using the IP address for allegedly infringing activity, even if the subscriber

turned out not to be that person. Plaintiffs “do not know what information [the District] has and

10 [cannot] say what . . . is more narrow than what [they have] asked for,” April 15–21, 2021

Emails at 2, and, in fact, the District says it has been unable to provide another, more specific

alternative over the last two months, see

at 2–6. Plaintiffs are willing to accept whatever

information reasonably available to identify the Doe MPD Officers allegedly responsible for

assault and battery on the plaintiffs. Id. at 2 (“We want information to be able to identify the

individual officers and supervisors who used force so we can identify and name potential

Defendants . . . [i]f you have anything that you think that would be more narrow than what we’ve

asked for that would get us there . . . that would work for us.”).

Nonetheless, the District contends that providing the “list of every officer who used

force against anyone at any point in time on Swann Street” is overbroad and would lead to

“either (a) Plaintiffs impermissibly including every officer who used force on Swann Street as a

defendant, regardless of whether they actually used force against any Plaintiff, or (b) follow-up

requests to determine which of the officers who used force did so against Plaintiffs, amounting to

full-blown discovery.” Def.’s Opp’n at 4–5. This concern about overbreadth must be assessed

against the alternatives available to plaintiffs, who could have requested, for example, the names

of all MPD officers on duty during the relevant timeframe on June 1, 2020, or the names of those

MPD officers present at this time in the precise locations identified in the complaint where

plaintiffs’ alleged injuries occurred at the hands of Doe MPD Officers. Instead, plaintiffs have

made a far narrower request, focused on a list of MPD officers who filed use of force reports or

generated force-related complaints related to the events at the 1400 block of Swann Street NW

on June 1, 2020. See April 15 – 21, 2021 Emails at 3, 6 (District denying plaintiffs’ requests for

information on all officers who used force on Swann Street).

11 In any event, neither concern raised by the District appropriately bars the discovery

plaintiffs seek at this stage. First, “the mere possibility that an unnamed defendant may defeat a

complaint at a later stage is not a legitimate basis to deny a Rule 26(d)(1) motion that otherwise

satisfies Rule 26’s discovery standards.” Strike 3,

. Thus, the District’s

expressed concern that plaintiffs might use the discovery sought to charge officers against whom

they do not have cognizable claims is not a basis at this early stage to deny plaintiffs’ requests.

Second, as plaintiffs point out, “[t]hat Plaintiffs may hypothetically have follow-up questions to

assist them in identifying John Doe officers does not change [the] analysis,” Pls.’ Reply at 8,

which is whether “the discovery [is] necessary to reveal the defendant[s’] identity,” Strike 3

Holdings, LLC,

.

In sum, plaintiffs’ requested expedited discovery is relevant to identifying the Doe MPD

Officers who should be named as defendants for their assault and battery claims and § 1983

claims and is not so overbroad as to render the discovery irrelevant to these claims.

B. Discovery of Use of Force Information About MPD Officers Does Not Impose Undue Burden and is Proportional to Needs of the Case

Turning next to whether the requested discovery is “proportional to the needs of the

case,” FED. R. CIV. P. 26(b)(1), the factors pertinent to this analysis heavily favor plaintiffs. 2 To

begin, “the importance of the issues at stake in the action” and related “importance of the

discovery in resolving the issues,” are apparent. This case involves serious claims of use of

excessive force and misconduct by MPD officers in their interactions with peaceful protesters.

Not even the District disputes that, without expedited discovery, plaintiffs’ state tort claims for

2 The parties make no representations about nor discuss the “amount in controversy” and “parties’ resources,” two other express considerations set out in Rule 26, so these factors are deemed neutral and need not be addressed. See FED. R. CIV. P. 26(b)(1). In addition, given the current posture of the case, before discovery has formally commenced, consideration of whether the discovery sought is “unreasonably cumulative or duplicative” is inapplicable.

12 assault and battery, which are subject to a one-year limitations period due to expire on June 1,

2021, plaintiffs will be unable to name, and therefore to pursue these claims against, the Doe

MPD officers. See Def.’s Opp’n at 4, 5–6; see Pls.’ Reply at 6. 3

The District discounts the importance of the looming limitations period, pointing out that

plaintiffs filed their case on March 28, 2021, “two months and two days prior to the expiration of

the statute of limitations” for assault and battery claims, Def.’s Opp’n at 6, and five months after

each plaintiff filed “a notice with the District’s Office of Risk Management,” id.; see Def.’s

Opp’n, Ex. 1, Notices of Claims Against the Metropolitan Police Department as to Pamela

Goodwin, Allison Lane, Jesse Pearlmutter, Sebastian Medina-Tayac and Samanta Troper (Oct.

28, 2020); Jenny Lazo’s Notice of Claim Against the Metropolitan Police Department (Nov. 12,

2020); Osea Remick’s Notice of Claim Against the Metropolitan Police Department (Nov. 12,

2020); Piryanka Surio’s Notice of Claim Against the Metropolitan Police Department (Nov. 12,

2020), ECF No. 13-1. Based on this chronology, the District accuses plaintiffs of seeking to

“circumvent the typical rules of discovery and force the District to respond” to an “onerous

discovery request[] within two weeks so that they do not miss a deadline over which they had

complete control.” Def.’s Opp’n at 6. The District’s effort to avoid discovery on this matter

critical to plaintiffs’ claims by suggesting dilatory conduct on plaintiffs’ part actually works in

3 Identifying the Doe MPD Officers to name as defendants in the assault and battery claims will also be helpful in identifying the proper defendants to name for the federal § 1983 claims, which are subject to a three-year statute of limitations. See City of Rancho Palos Verdes v. Abrams,

(2005) (noting that “42 U.S.C. § 1988 is ‘a directive to select, in each State, the one more appropriate statute of limitations for all § 1983 claims.’” (quoting Wilson v. Garcia,

(1985)) (emphasis in original); Owens v. Okure,

, 249–50 (1989) (“[W]here state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions.”); Earle v. District of Columbia,

(D.C. Cir. 2012) (applying three-year residual statute of limitations to a § 1983 claim against the District of Columbia for failure to comply with its obligations imposed by the Vienna Convention on Consular Relations); Carney v. American Univ.,

(D.C. Cir. 1998) (“The Supreme Court has held that in states with multiple statutes of limitations, claims under section 1983 are governed by the residual or general personal injury statute of limitations (like [D.C. Code] section 12-301(8))”).

13 the reverse direction: the District has been on notice, for almost six months, since October and

November, 2020 that assault and battery claims might be brought against MPD officers for

conduct arising from the manner in which MPD handled plaintiffs’ peaceful protests on June 1,

2020, and given this passage of time, the District should be better prepared to respond to requests

for information about which MPD officers on the scene did what. See

Contrary to the

District’s effort to blame plaintiffs for being unable to identify the Doe MPD Officers, the record

in this case shows that plaintiffs have sought to obtain the necessary information through more

convenient, less burdensome, and less expensive channels and diligently pursued information to

identify the names of the Doe MPD Officers, by notifying the District of the specific requests, on

March 26, 2021, see Pls.’ Letter at 1–2, and conferring with the District extensively by

telephone, Pls.’ Reply at 2–3, and email, see generally April 8, 2021 Email; April 15–21, 2021

Emails. These efforts have been to no avail.

The next factor to consider―“the parties’ relative access to relevant information,” FED.

R. CIV. P. 26(b)(1)―plainly favors plaintiffs. The District, without question, possesses any

relevant information about the Doe MPD Officers in the District’s employ. The requested

discovery simply cannot be reasonably obtained from some other source before expiration of the

statute of limitations. Alternative means to obtain information identifying the Doe MPD Officers

alleged to have injured the plaintiffs might involve production and review of all MPD body-worn

camera (“BWC”) footage from June 1, 2020 showing plaintiffs, combined with identification of

any officer associated with that footage or being shown on the BWC footage engaging in

allegedly harmful conduct. Such an alternative might produce fairly precise information about

what occurred that day, but given the volume of such footage available, this means of producing

the requested information might be burdensome if required to be produced on an expedited basis.

14 Notably, this is not what plaintiffs have requested in the pending motion, and the information

they have requested, though possibly less precise, is also less burdensome to obtain and produce.

Finally, the Court must consider “whether the burden or expense of the proposed

discovery outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1). Here, the “likely benefit” of

the proposed discovery largely outweighs its burden. The District does not dispute that the

expedited discovery requested in this motion “is not burdensome to produce, as, upon

information and belief, the Metropolitan Police Department keeps [information about officers

who use force or have force-related complaints against them] in the regular course of business.”

Pls.’ Mot. at 6. Moreover, plaintiffs’ requests are sufficiently specific and narrow, “tailored to

identify the officers who used the force alleged in Plaintiffs’ Complaint” at a specific location on

a specific date,

as evidenced by plaintiffs’ proposed order, which reflects pragmatic

willingness “to accept any information that would be sufficient to allow [plaintiffs] to identify

John Doe officers,” Pls.’ Reply at 7; see also Pls.’ Mot., Ex. 2, Proposed Order, ECF No. 11-2

(requesting “information sufficient to identify the John Doe officers who used force against

Plaintiffs as alleged in their Complaint by May 17, 2021”).

The District objects that “providing [the] information on an expedited basis would be

burdensome to the District,” Def.’s Opp’n at 5, but this objection relies solely on the District’s

concern about being “required to review extensive footage . . . on a truncated timeline” when

there were “approximately 200 MPD officers present at Swann Street NW on June 1, 2020, all of

whom were equipped with body-worn cameras (BWC).” Def.’s Opp’n at 6. This concern is

misplaced because plaintiffs’ pending motion for expedited discovery does not request BWC

footage. Indeed, plaintiffs were not even aware that this volume of BWC footage existed until

the District filed its opposition. Pls.’ Reply at 4. Instead, plaintiffs have “crafted their proposed

15 order . . . specifically to allow Defendant to provide” information about the Doe MPD Officers

that used force “in the least burdensome manner possible,” Pls.’ Reply at 4, and have repeatedly

suggested that the identities of the Doe MPD Officers may be reasonably ascertained through

“reports and complaints regarding individual officers’ use of force at the time and place in

question,” id. at 6; see also id. at 10. 4 While plaintiffs have agreed to receive and review “video

footage” in the District’s possession that would assist them in identifying Doe MPD Officers to

be charged in the complaint, Pls.’ Mot. at 3, they only made such a suggestion in response to the

District’s refusal to provide the records plaintiffs originally sought, see April 15–21, 2021

Emails at 2.

Additionally, the District alleges plaintiffs’ requests are burdensome for “lack [of]

clarity.” Def.’s Opp’n at 5. This objection falls short given both the record of the parties’

conferral process submitted to the Court, the briefing in connection with the pending motion, and

the detailed allegations in the Complaint, which alleges that the Doe MPD Officers “us[ed] their

batons to push and batter protesters[,]” “deploy[ed] excessive amounts of pepper spray at

[plaintiffs,]” “used violent physical force[,]” and “hit demonstrators, prodded and shoved them

with batons, knocked them to the ground, and pinned them against cars and trees.” Compl. ¶¶

43–45, 51–52; see also, e.g., April 20, 2021 Emails at 2 (plaintiffs requesting guidance from the

District on what kind of information on use of force would be “more narrow” and offering,

4 The District’s argument about the burden of being required to review “potentially hundreds of hours of footage” on an expedited basis, Def.’s Opp’n at 5–6, is thus baseless. To the degree, however, that the District’s argument also reflects a concern about being required to review all relevant records in its possession on an expedited basis to fulfill the plaintiffs’ request, the District may rest assured that plaintiffs’ requests for information “sufficient to identify” the Doe MPD Officers does not require disclosure of all relevant information at this stage, but only enough information to assist plaintiffs in identifying these individuals. Cf. U.S. Commodity Futures Trading Comm’n v. Trade Exch. Network Ltd.,

(D.D.C. 2014) (rebuking party’s objection to request for production, because the party “[did] not know what documents ‘sufficient to identify’” meant, as “baseless” and “deliberate obfuscation”).

16 without knowledge of the District’s available records, to narrow the plaintiffs’ requests to

“information regarding who used force or deployed pepper spray on Swann Street at the time in

question, video footage that identifies specific officers and their actions, and/or use of force

reports that identify specific officers and the force used”).

The District may not avoid producing information both relevant and critical to plaintiffs’

claims before the expiration of the statute of limitations by denying plaintiffs’ informal requests

for discovery to identify the Doe MPD Officers and delaying response to plaintiffs’ repeated

attempts to clarify or narrow the requests to reduce the District’s burden in expedited production.

IV. CONCLUSION

For the foregoing reasons, plaintiffs’ motion for leave to conduct expedited discovery is

granted and defendant District of Columbia is directed to produce, by May 25, 2021, (1) use of

force reports filed by MPD officers for actions taken on the 1400 block of Swann Street NW on

June 1, 2020 and (2) complaints filed against MPD officers for excessive force taken on the 1400

block of Swann Street NW on June 1, 2020. An order consistent with this Memorandum

Opinion will be filed contemporaneously.

Date: May 18, 2021 __________________________ BERYL A. HOWELL Chief Judge

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