Limone v. United States
| Decision Date | 12 August 2011 |
| Docket Number | Civil Action No. 02cv10890–NG. |
| Citation | 815 F.Supp.2d 393 |
| Parties | Peter J. LIMONE, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Edwin Durham, Michael Rachlis, Rachlis, Durham, Duff, Adler, Chicago, IL, Howard Friedman, David Milton, Law Offices of Howard Friedman, P.C., Juliane Balliro, Nelson Mullins Riley & Scarborough LLP, Michael Avery, Suffolk University Law School, William T. Koski, Koski & Kearns LLP, Ian H. Moss, Richard D. Bickelman, Posternak, Blankstein & Lund, John C. Foskett, Daniel R. Deutsch, Deutsch, Williams, Brooks, Derensis & Holland, P.C., Boston, MA, Bridget Ciarlo, Glenn E. Coe, Joseph B. Burns, Austin J. McGuigan, Rome McGuigan, P.C., Hartford, CT, Victor J. Garo, Law Offices of Victor J. Garo, Medford, MA, for Plaintiffs.
Keith H. Liddle, Bridget Bailey Lipscomb, Department of Justice, Mary McElroy Leach, Washington, DC, John M. Connolly, Michael B. Meyer, Meyer, Connolly, Sloman & MacDonald, LLP, James M. Chernetsky, City of Boston Law Department, Thomas R. Donohue, Brody, Hardoon, Perkins & Kesten, Edward J. Lonergan, Boston, MA, E. Peter Mullane, Mullane, Michel & McInnes, Cambridge, MA, for Defendants.
Dennis Condon, Waltham, MA, pro se.John Morris, Niceville, FL, pro se.
MEMORANDUM AND ORDER RE: PLAINTIFFS' MOTION FOR RECOVERY OF REASONABLE COSTS AND FEES
This is the last motion that I must resolve in connection with this Federal Tort Claims Act (“FTCA”) case against the United States Government. In this lawsuit, Peter Limone (“Limone”), Enrico “Henry” Tameleo (“Tameleo”), Louis Greco (“Greco”), and Joseph Salvati (“Salvati”), claimed that thirty-nine years ago they were convicted of a crime which they did not commit-the murder of Edward “Teddy” Deegan (“Deegan”). Limone, Tameleo, and Greco were sentenced to die in the electric chair, a sentence reduced to life imprisonment when the Massachusetts death penalty was vacated. Salvati was also sentenced to life imprisonment. They accused the United States, specifically, the Federal Bureau of Investigation (“FBI”), of framing them for Deegan's murder by failing to disclose exculpatory documents and information, and then, by covering up FBI misconduct, ensuring their imprisonment over the next three decades. They brought this lawsuit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., on a number of grounds.
A lengthy memorandum and order was issued in July of 2007 awarding the plaintiffs judgment in the amount of $101,750,000.00, which the government appealed. Limone v. United States, 497 F.Supp.2d 143 (D.Mass.2007). The First Circuit affirmed, in part. Limone v. United States, 579 F.3d 79 (1st Cir.2009).
Within the appropriate period under the rules, Plaintiffs filed a motion seeking attorneys' fees and expenses pursuant to 28 U.S.C. § 2412(b) deriving from their contention that the United States acted in bad faith in the conduct of this litigation. The government opposed, arguing that there was no bad faith and, in any event, if the Court so found, it should award only fees and costs traceable to that conduct.
I find that there was bad faith conduct, but not with respect to the government's conduct in toto. While I emphatically rejected the government's substantive positions—certain of the defenses it interposed I labeled “absurd”—in the light of the First Circuit's decision, I cannot find them to have been asserted in bad faith. After all, while the First Circuit Court affirmed this Court's finding of intentional infliction of emotional distress, and the damage award, it agreed with the government with respect to plaintiffs' claim of malicious prosecution. It concluded that the FBI was not responsible for the state murder prosecution that victimized these plaintiffs; that prosecution was attributable to decisions of the state authorities.1
Nevertheless, there was a pattern of bad faith conduct that the First Circuit has not addressed, with which this Court was intimately familiar—that is, the government's conduct in connection with discovery.
This was a document case from start to finish; many of the witnesses were dead or ailing. The plaintiffs' case had to be painstakingly pieced together through materials that were not publicly available. Indeed, secrecy—and secrecy gone awry—was central to the litigation. Documents concerning the “Top Echelon Criminal Informant Program” and the abuses committed in its name, including those that were the subject of this lawsuit, had been purposefully withheld, not only from state law enforcement, but from other divisions within the FBI. The program did not become known to the Department of Justice until 1995, during extraordinary proceedings before Judge Mark Wolf in United States v. Salemme. United States v. Salemme, 91 F.Supp.2d 141 (D.Mass.1999); Limone v. United States, 497 F.Supp.2d at 153. The record revealed FBI agents “hiding the ball,” not disclosing critical exculpatory information in the Deegan murder case for nearly forty years, information that would have exonerated the plaintiffs. As I noted in my decision:
... [T]hat policy [the nondisclosure policy] continued to the present, and affected the very trial of this case. The attorneys representing the government were not permitted access to unredacted documents even though they were obliged to certify that all relevant information had been turned over under Rule 26, Fed. R. Civ. Pro. That charade ended when I ordered that lawyers with an appearance in this case had to have access to all of the information in unredacted form.
Limone v. United States, 497 F.Supp.2d at 161.
The problem with the government's conduct went beyond mere delay. The government blocked access to the relevant documents—hiding behind specious procedural arguments, baseless motions to stay and “emergency” motions to defer production, culminating in a frivolous interlocutory appeal. While the government may have had a legitimate concern about protecting informant identities—what they insisted was their core concern—that protection was hardly absolute and unreviewable. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) the seminal case on the disclosure of informant identities contemplates a balance between the public interest in protecting the flow of information on the one hand, and an individual's right to prepare his or her case, on the other, a balance which a judicial officer is to strike based on the facts before her. Until pushed by myriad orders of the Court, the defendants prevented the Court from making a considered decision. They would not disclose—even in camera—until ordered to do so, why, for example, a deceased informant's forty year old information deserved protection. They constantly refused to disclose the facts on which these claims of privilege were based. They would have this Court, the parties, the lawyers, the public, simply trust that they had previewed the documents in good faith, and redacted information they simply had to protect.
When, at long last, the Court was on the verge of awarding sanctions against the defendants, there was an extraordinary admission. The lawyers representing the government, who had signed the pleadings during the two years of discovery, who were familiar with the plaintiffs' allegations, and who were subject to the discipline of this court, including the disciplinary provisions of Rule 11 and Rule 26(g) Fed. R. Civ. Pro.—had not been given access to the discovery in its unredacted form at all. See Order to Show Cause, December 12, 2006 (document # 494). While Rule 26(g), Fed. R. Civ. Pro., requires that every disclosure be signed by “at least one attorney of record” who is supposed to make a “reasonable inquiry” that the “disclosure is complete and correct as of the time it is made,” trial counsel was in no position to make these representations. Only the general counsel of the FBI was able to decide what should or should not be redacted because only she (and presumably her agents at the FBI) was authorized to see them. But the FBI's general counsel refused to enter an appearance in the case. She would not come to court to justify the redaction decisions that had been made, in effect to demonstrate her good faith. Put simply, the lawyer in front of me lacked the authority to see the unredacted documents, and the lawyer who had that authority was not in front of me!
On December 12, 2006, over two years from the first discovery motion, I ordered that the matter be brought to the personal attention of the Director of the FBI, to “answer the Court's concern that counsel be given the tools they need to defend these charges, namely access, as officers of the Court, to the documents relevant to the case at bar.” See Order to Show Cause. And with that Order, the logjam was broken.
Notwithstanding my findings of bad faith, however, I was not...
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