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AUG 20 2010 ar Superior Court aftne Distt of Courbia Estate of ROBERT E, WONE, by Washington, D.C. KATHERINE E. WONE, as Personal Representative, FILED UNDER SEAL PURSUA’ TO COURT ORDER Plaintiff Civil Action No. 008315-08 v. ‘The Honorable Brook Hedge JOSEPH R. PRICE, VICTOR J. ZABORSKY, Next Event: Status Hearing and DYLAN M. WARD, September 10, 2010 Defendants. PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO SEAL, In their motion to seal, Defendants claim that three documents attached to Plaintiff's motion for issuance of a commission to subpoena Verizon are “annoyling] and embarrass[ing}" to Defendants (Mem. at 1) and that, consequently, Mrs. Wone’s motion and the exhibits thereto should be shielded from public view, Defendants’ motion ignores the public's “general right to inspect and copy public records and documents, including judicial records and documents." Mokhiber v. Davis, 537 A.2d 1100, 1106 (D.C. 1988) (quoting Nixon v. Warner Comme ’ns, ine., 435 U8. 589, $97 (1978)), On a more practical level, Defendants’ motion ignores the fact that the three documents at issue are already in the public domain, and have been for many months. ‘The documents that Defendants seek to shield from publie view are: 1. Defendant Price's Alt.com internet advertisement, which was broadcast to the public at large for many months and which already is publicly available in Superior Court files. See United States v. Price, et al., Government's Notice of Uncharged Conduct I, Att. B (Feb. 5, 2010), and eyCiidiinnaas 2. Two emails between Defendants Ward and Price, which were introduced as exhibits in the criminal trial, See United States v. Price, et al., Gov't. Exs. 671-E and 671-G. Because these documents are already in the publie domain, there is no reason to seal them in this case. Moreover, even if the exhibits to Mrs. Wone’s motion were not already in the public domain, the Defendants have not come close to overcoming the strong presumption in favor of public access to court records. ARGUMENT. 1. THE COURT SHOULD DENY DEFENDANTS’ MOTION BECAUSE IT SEEKS TO SEAL RECORDS THAT ARE IN THE PUBLIC DOMAIN. Defendants seck to seal from public view documents that were admitted into public evidence in this Court. For this reason alone, the Court should deny Defendants’ motion. Although sealing may be appropriate in certain limited circumstances, courts routinely reject motions to seal when the information sought to be sealed is already in the public record. See, e.g., Mitchell v. United States, No. CV-09-8089-PCT-MHM, 2009 WL 4694010, at *2 (D. Ariz, Dec. 4, 2009) (denying motion to seal because “nothing in the exhibits [sought to be sealed] is more ‘damaging’ to Petitioner than the evidence already presented at his trial"); Emmanouil v. Roggio, No. 06-1068 (FLW), 2007 WL 1174876, at *3 (D.NJ. Apr. 19,2007) (because “material Defendant seeks to seal is already a part of the public record, [it is] not properly sealable”); Doe v, Roe, 638 So.2d 826, 830 (Ala. 1994) (denying motion to seal “because [the document] is based on events already in public records”); Bldg. Indus. Ass'n of Wash, v. McCarthy, 218 P.3d 196, 209 (Wash. App. Div. 2009) (seal not appropriate where information was “already known to both parties and was a matter of public record”) Defendants make no mention of the fact that the exhibits they scck to seal were admitted into evidence at a public trial, or that Plaintiff’s motion relics only on documents in the public record, ‘These facts are critical, and constitute a more than adequate basis upon which to deny Defendants’ motion. 11. DEFENDANTS HAVE NOT OVERCOME THE STRONG PRESUMPTION IN FAVOR OF PUBLIC ACCESS TO FILINGS IN CIVIL CASES. Even if the information and exhibits in Plaintif¥’s motion were not already in the public domain, Defendants would not be able to overcome the strong presumption in favor of public access to court records. As the DC Circuit has recognized, the right “to inspect and copy [judicial] records” is “fundamental to a democratic state.” United States v. Mitchell, $51 P.24 1252, 1257-58 (D.C. Cir, 1976), rev'd on other grounds sub nom. Nixon v. Warner Comme'ns, Inc., 435 U.S. 589 (1978)). In particular, “the presumptive right of access... applfies] 10 motions filed with the court concerning discovery, to evidence submitted with such motions— including materials produced during discovery—and to the court’s dispositions, if any.” Mokhiber, $37 A.2d at 1111. This strong presumption applies with special force in a case of ‘great public interest like this one, Importantly, since the presumption is that there will be public access, i is the Defendants’ burden to show why Mrs, Wone’s motion and the exhibits thereto should be hidden from the public. See id at 1111 (“[T]he party desiring secrecy must rebut the presumptive right of access.”), Defendants rely on a passage in Mokiber (Mem. at 2) in which the court says that “information of certain kinds may be more readily closed from public view, such as commercial and national security secrets, and information that seriously invades the privacy of third partics or would merely promote libel or scandal.” fd. at 1115. Mrs. Wone"s motion does not concem commercial or national security secrets and does not invade the privacy of any third party, More fundamentally, it is not credible that the Defendants could be “libeled” or “scandalized” by documents already in the public record or by mere mention of their sexual orientation, which is well known to the public and about which the Defendants have openly and repeatedly commented.' CONCLUSION The already-public documents attached to Mrs. Wone’s motion for issuance of a ‘commission to subpoena Verizon do not add anything to the public’s existing knowledge about the Defendants and, in any event, the Defendants have not overcome the strong presumption in favor of public access to court records. Accordingly, Defendants’ mation to seal should be denied? Respectfully submitted, / P| !— Benjamin J, Razi (brazi@eov.com) D.C. Bar No, 475946 Stephen W. Rodger (srodger@cov.com) D.C. Bar No. 485518 Daniel Suleiman (dsuleiman@cov.com) D.C. Bar No, 495975 COVINGTON & BURLING LLP 1201 Pennsylvania Ave., NW ‘Washington, D.C, 20004 (202) 662-6000 ' Defendants’ counsel discussed their clients’ sexual orientations in a number of news articles relating to the murder of Robert Wone, see, e.g, Exhibit A, Keith L. Alexander, Charges in Wone Slaying Based on Sexual Orientation, Defense Astorneys Say, Wash. Post, May 18, 2010, and Defendants Price and Zaborsky openly revealed their sexual orientations in a USA Today article in 2004, see Exhibit B, Karen 8. Peterson, Looking Straight at Gay Parents, USA Today, Mar. 9, 2004 2 Defendants also have indicated that they intend to file a motion for a protective order, and raise several points related thereto, Mrs. Wone will address those arguments in more detail when the Defendants file that motion, For the time being, Mrs. Wone points cut that it is irrelevant whether the government put forward or abandoned any particular theory of its case in the criminal proceeding. ‘Though both cases contcem the same tragic incident, this litigation is a separate case, involving different legal theories and subject to a different standard. Mrs, Wone's right to take discovery should in no way be constrained by any tactacal decisions made by the ‘government in the separate criminal case. August 20, 2010 Patrick M. Regan (pregan@reganfirm.com) D.C. Bat No. 336107 REGAN ZAMBRI & LONG, PLLC 1919 M Street, NW, Ste 350 Washington, D.C. 20036 (202) 463-3030 Counsel for Plaintiff CERTIFICATE OF SERVICE Thereby certify that on August 20, 2010, I caused a copy of Plaintiff's Opposition to Defendants’ Motion to Seal to be served via Email and First Class Mail on the following counsel: David Schertler Robert Spagnoletti Schertler & Onorato LLP 60] Pennsylvania Ave., NW Washington, DC 20004 dschertler@schertlerlaw.com rspagnoletti@schertlerlaw.com Counsel for Defendant Dylan M. Ward Frank F. Daily Scan P. Edwards Larissa N. Byers ‘The Law Office of Frank F. Daily, P.A. 11350 McCormick Road Executive Plaza III, Suite 704 Hunt Valley, MD 21031 info@frankdailylaw.com Counsel for Defendant Victor Zaborsky Craig D. Roswell Brett A. Buckwalter Heather B. Nelson Niles, Barton, & Wilmer LLP 121 S. Calvert Street, Suite 1400 Baltimore, MD 21202 cdroswell@nilesbarton.com Counsel for Defendant Joseph Price Spo Daniel Suleiman EXHIBIT A ‘Charges in Wone slaying based on sexual orientation, defense attoreys say Fe Washington Post Page | of 3 Charges in Wone slaying based on sexual orientation, defense attorneys say By Keith L. Alexander Washington Post Staff Writer ‘Tuesday, May 18, 2010; BOL Police and prosecutors charged three men with conspiracy in the Robert Wone komicide case because oftheir sexual orientation and their nontraditional relationship with each ‘other and not based on any evidence, defense attorneys argued on the opening day of the tial, ‘The three main defense attomeys spent 90 minutes Monday telling « D.C. Superior Court Judge that federal prosecutors have wrongly charged their clients with covering up Wone's 2006 fatal stabbing, Instead, they told the judge, an unknown intruder climbed a 7-foct-fence and came (through the back door ofthe trio's Dupont Circle townhouse the evening of Aug. 2, 2006, ‘when Wone, 32, was staying there and stabbed him to death as he siept in a guest room, The attorneys argued that their clients had nothing to de with Wone's killing and have cooperated with police, Joseph R. Price, 39, Victor J, Zaborsky, 44, and Dylan M. Ward, 39, were charged in 2008 with conspiracy, obstruction of justice and tampering with evidence. They face a ‘maximum of 38 years in prison if found guilty on all counts. No one has been charged with killing Wone, Wone, a Washington lawyer who warked as general counsel for Radio Pree Asia, was 3 college friend of Price's, and Price allowed ‘Wone to spend the night after a long day at ‘work so he wouldn't have to drive to Oakton. Defense attomeys said the three men, who are gay, are in a committed, three-way relationship and refer to themselves as a "family." It was that relationship that made police and prosecutors suspect they were involved in Wone's slaying, the attomey said, “The police got marred and infatuated in a theory based on ignorance. Why isa straight ‘man coming tothe house of @ gay man?* Price's attorney, Bernie Grimm, told Judge Lymm Leibovite. Last week, the defendants opted against a jury tral, leaving Leibovitz as the sole arbiter of their fate. ‘The attorneys outlined for the judge how for any occasion® Bouquets Front Led bitp://www.washingtonpost.com*wp-dyn/content/article/2010/05/17/AR2010081702360_p... 5/18/2030 ‘Charges in Wone slaying based on sexual orictation, defense attorneys say The Washington Post Page 20f3 Charges in Wone slaying based on sexual orientation, defense attorneys say Price and Wone had been friends since their undergraduate college days at the College of William and Mary, how Price organized Wone's 30th birthday party at his home, and how the men, along with Wone and his wife, Katherine, had often socialized together. "There is no reason Mr. Price would hurt his fricnd or let somebody hurt him and cover that up," Grimm said. Assistant U.S. Attorey Glenn Kirschner said the case has nothing to do with lifestyle. He argued that the men not only know who killed Wone but are also covering up for the Killer and that their loyalty to each other has kept them quiet. "They consider themsclves a tight, cohesive family. Sadly, Robert Wone ‘was not a member of that family," Kirschner said. ‘The men Were the only ones in the house at the time of the stabbing, and there was no sign ofa break-in. “In the shor term, these men have gotten away with itThe murder has net been solved," Kirschner said During their opening statements, defense attomeys pointed to what they consider several holes in the government's case. For ‘example, more than {00 fingerprint samples ‘were taken from the house, Four of those prints did not belong to any of the three defendants oF Wone, the attorneys said. ‘And even though prosecutors allege that the townhouse had been cleaned and Wone's body moved, defense attorneys told the judge t hat there was no evidence of any cleaning agents or detergents atthe crime scene. The defense attorneys also noted that Wone's wallet, keys and Movado watch were all found at the house, Ifthe three men had ‘made up the intruder story, they suid, why ‘would they have teft Wone's valuables? Prosecutors had believed that Wone was incapacitated during his attack, explaining ‘hy there were no signs ofa struggle. But the ‘men's attomeys said that Wone was asleep ‘when he was stebbed, pointing out that a ‘mouth guard he used every night was still in his mouth, Ward's stomey, David Schertler, accused detectives of not doing & complete investigation. He pointed to one ofthe big ‘mysteries in the ease to make his point: the ‘Advrieament Donate your eat Boat o RY Free Towing « Tax Deductible a, Seely 1-877-225-9384 "meine nah got rt ayn O indo 8 aR stn fonronne ey (icra BREESE) |utp:/snwew.washingtonpost.com/wp-dyn/content/article/2010/05/17/AR2010051702360_p... 5/18/2010 (Charges in Wone slaying based on sexual orientation, defense attorneys say Gye Washington Post Page 3 of 3 Charges in Wone slaying based on sexual orientation, defense attorneys say murder weapon, A knife found next to Wone's body was too small to have inflicted the three fatal stab ‘wounds, prosecutors have said, arguing that it was planted. Wone was killed by another knife that was missing from a cutlery set \Watd kept in the closet of his second-floor bedroom, authorities said. That knife remains missing, Schertler said a better investigation would have determined that the knife in Wacdl’s set has been missing for nearly 30 years and that the set had changed owners three times before Ward got it. Schertler said the actual knife was in Seattle with another person, ‘The attorneys said the knife found next 10 Wone's body was the knife used in his slaying and asked why, if their clients had staged the crime scene, they would have planted a knife instead of saying that the intruder took it, "The prosecution's theory is riddled with holes,” Schertler said. "There was no ‘conspiracy or fabrication." Zaborsky's attorney, Thomas G, Connolly, said the government's case was 8 “theory chasing evidence.” {In the crowded courtroom behind their attorneys, Price, former intellectual property lawyer, set between Zaborsky and ‘Ward but closest o Zaborsky, Price and ‘Zaborsky wear gotd wedding bands on their fingers, while Ward, who doesn't wear a ring, sits farthest to the right of the two and doesn't engage in conversation with his roommates. The three have been fiee pen: the trial and live together in the suburts. ‘Wone's widow was the first witness called Monday afer opening statements. She ‘estfied that her husband worked late that evening to meet the night staff at his new job and to take a continuing-education class Wone seid her husband e-mailed two friends to see if either had space at their District homes so he wouldn't have to make the long trek back to Oakton. Price was the first 10 respond. ‘nupr new washingtonpost.com/wp-dyn/content/aicle/2010/05/17/AR201005 1702360_p.. snis010 EXHIBIT B USATODAY.com - Looking straight at gay parents Page 1 of $ Tech TEMALIAE + PWT OUR +SEE + OST rORULAL + RUBESROE + MoRMTS gcteemestons Weather Fons secon 13166 plied 9700634 sencn mio © Looking straight at gay parents Moviee By Keron S. Peterson, USATODAY Progny’s Top Lite Strios ssuigmant SUYERSPRNG. Me — non Kenta. 5 ghee» SE hur ocond sonnextmenh her esbanparoecwilbeinwne | Pvbuaooees Bivingioon Sudan s« se Munle . cae Muvcnane singe U pais satan fries + Bc caontsonany Topsinnis Rash, 3 neal ‘isten Lia NBs too row oa Mision nd vo 8. : v ~ pag usATODAy cont Tamra bss ‘tangs ‘Beality Check - li’ Comer Se By Tn ion, USA TODAY Shopping "eo! Crater - lar curarglon holes, tr abr, 36, te gy an fcolanang Welsne toby beg the mse Re eee ey What tre you, Ten 1s0to09 JORPN Pic, $2, Zavoraly/e gay carver. Presls ne obogecal Shopping for tn father of Musheno's frat child, now 8. (Related photo gallary: _« Bowes ovet & mite} 2 wee Columnists tars uml bame Sng 8Jowely Pate Jovan, 2Rersty krows Ia ome ute compleatd. Weare fering EET alacsonann naw terry here, Phare are nolo models Fone canven G2 ‘Watonheson ‘nurdrany Meme Orsay coon Aa Fraaarituh at xa | Gralzwisan _conautonal anand fo ban gay mantagoo pee es in Gaming Se cure wares going rnewed etnton: gay poronrg comers Sho ‘ccede _Buvod boneat he cobatson gay mariage is the question of ust Sesrtenraee aa re san eae sorte, 50 GRY courte such an eva we wi au srg ov xonce if manatee soley, Suits fooling althat otal noang'snaon ‘S278 Mushono, whose baby s duo in Apel. Hes inendships ae tthe Mis vased more on parenting than on an dently aa a issbien, he tava, "thane eve Pop.Gansy stralght ends than ido gay. As you become a parent, you look for other parents” betp:dwww.usaloday.conviife/lfestyle/2004-03-09-gay-parents_x.htm 1123/2009 USATODAY.com - Marketplace Looking strnight at gay parents Page 2 of $ “We are good people,” anys Catherine Alston, 44, who has boon Musheno's partner for ‘ight years. "We have good values, And we Will alse sons with good values." Qn the ether side ofthe cuhural chide are those who thik gey couples are not forming “Tamilas" at all but weakening w pltar of sccety: ta tadlfonl uit of Mom, Dad and ‘ads, The bro paret, helresonual model ssl considered the gold wanda or ‘Wie believe that common sense and a vast body of social-eclence evidence show hikren are betier off when they re raised by telr own bislogcal, married moter and ‘othr.” says Peter Sprigg of the Family Research Councl, which champlons wadianal ‘marrige and tary. "We (ink tis @ great mistake fo delleralaly create modieriose ‘and fates farnios trough romcsexvat parenting.” ‘AS with mos ihings n the debate over gay parenting, just how many gay femiies there {79 Is hard to pin down, Gery Gates, a demographer withthe Urban insttute, nas ‘analyzed 2000 Census data and estimates thel there are 100,000 female same-sex ‘couples and 67,000 male same-sex couples with at feast one child under 78 nthe hhome. inhi book due in Ap, ™e Gay and Lestion Aas, ne estimates tat 250,000 hildren are being alsed by same-sox couples, ‘Those rumbars are probebly iow, Says Bob Witeck of Witeck-Combs Cornmunieatons, 2 marketing fim thet specializes in the gay community. Using a variety of surveys and studies, he bays a conservative estimate is ebout 3 milion chikren being rae by gay parents. Concern for the kids ‘nthe 1960s and 70s, the children of ays wore often the product of a hotorosexuat ‘martiage tat ended. The kids were then brought inio a parents new homosexual relatlonship, ‘Those gsy paronts often had been through a painful coming-out process and a bittr ‘voree, says David Jolie, 47, of Washington, 0.C. Mast did not think about having more children, of says, gay adults "ean decide what we won! to In today’s “more mature cute. ‘and able" to have famdies. 0 personally, anc we have the willingness, das Jolt and his partaer have gone the rovte favored by mary gay man: adoption. "Being @ dad Is tha best thing thal ever happened to me," Jlife says. He and hit partner adopted Manuel, now, wiio nad Ived In an orphanage in Guatensals for WO years. "There ae a lot of children who need fenslies and love and a parent's protection and Guidanc* ne sys." irk hat canbe provided by people Fogarcoas of ek vxual ao." ‘Today's lesbian moms Increesingy are having heir own blologlcal bablae through erticial insemination. That was the metho: chosen by Musheno, “The two gay men who are ths biological tathora of her children ive in Washington, B.C. The men are actively Involved parents and have helped create an extended “core fami’ for Alec and wil do the sama forthe baby, Zabaraky eaye, ‘The parenting tase is the wornen's modest, three-bedroom hone complete with dog, cat and enough toys stacked around to stock & sma store, Ipswww usatoday conmlfelfestyle/2004-03.09-goy-parents_x. htm 23/2009 USATODAY.com - Looking straight at gay parents Page 3 of 5 ‘When Musheno end A’ston decided they wanted kids, they rejectod the Kea of an ‘anonymous donor an found Price through a fend, And when a.secord chit was an ‘option, nis partner, Zaborsky, decided he would lave tobe a dad, (00 ‘Complex a3 i may s20m, i all works quite well except for cosasionathead-buting, rice saya, He thins Mushero hes a tendency 1 "oampar Alec foo much. When falls down, sho wants fo rush ovor ond make sure he is OK. | know he willbe fina. “They both defer to the wornen, though. Alston hes adopted Mushenc’s chia the women ar the legal parents, Educa » Szamacaa Home + aval + Newa « Money © Src» Ll» Tac «Yestnar Rescues: Mote news + Be maa + FAG » Contests + Emad news Joba atm us nimshi + Tame of sce + ‘Ata USATODAY com BSS od ‘The Netons Homepage sp: //werw.usatoday. comn/life/ifestyle/2004-03-09-gay-parents_x.him 1/23/2009

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