Filed

D.C. Superior Court

11 Apr 14 P04:04
Clerk of Court

SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA

CIVIL DIVISION
____________________________________
)
ESTATE OF ROBERT E. WONE, )
By Katherine E. Wone )
)
Plaintiff, ) 2008 ca 8315
) Judge Michael L. Rankin
) Calendar 7
v. )
)
JOSEPH R. PRICE, et al., )
)
Defendants. )
___________________________________ )

THE METROPOLITAN POLICE DEPARTMENT’S MOTION TO QUASH THE

DEPOSITIONS OF DETECTIVE XANTEN AND MOTION TO QUASH THE
DEPOSITIONS OF DETECTIVES WHALEN, NORRIS, AND SERGEANT WAGNER
FOR THE LIMITED PURPOSE OF ASSERTING THE LAW ENFORCEMENT
PRIVILEGE AS TO SUBJECT MATTER NOT PREVIOUSLY DIVULGED BY LAW
ENFORCEMENT

Non-party, the Metropolitan Police Department (“MPD”), moves to quash the notice of

deposition of defendant, Joseph Price, which seeks to depose Detective Xanten, presently

scheduled for Monday, April 18, 2011, at 10:00 a.m. MPD moves to quash based upon the law

enforcement privilege because there is an open investigation in the companion criminal matter

and Detective Xanten did not testify in the companion criminal matter. Additionally, MPD

moves to quash the notices of depositions of 1) Detective Milton Norris, presently scheduled for

Monday, April 18, 2011, at 1 p.m.; 2) Detective Daniel Whalen, presently scheduled for

Wednesday, April 20, 2011, at 10:00 a.m.; and 3) Sergeant Daniel Wagner, presently scheduled

for Wednesday, April 20, 1011, at 1:00 p.m.1 for the limited purpose of asserting the law

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Defense counsel has informed undersigned counsel that more notices will be filed in the upcoming weeks. When
such notices are filed, MPD reserves the opportunity to supplement the instant motion as to all additional witnesses.

1
enforcement privilege over subject matter not previously divulged by law enforcement during the

course of the criminal investigation, the related criminal trial, and the pendency of the instant

civil case because there remains an open criminal investigation. Additionally, none of the

officers have been personally served with notice of the depositions. Furthermore, the witness fee

has not been paid for any of these officers.

In support thereof, this Court is respectfully referred to the Memorandum of Points and

Authorities annexed hereto and incorporated by reference herein.

WHEREFORE, MPD prays that the instant motion be granted.

Respectfully submitted,

IRVIN B. NATHAN
Acting Attorney General for the District of Columbia

GEORGE C. VALENTINE
Deputy Attorney General, Civil Litigation Division

/s/ William B. Jaffe

WILLIAM B. JAFFE [DC Bar No. 502399]
Chief, General Litigation Section III

/s/ Patricia B. Donkor

PATRICIA B. DONKOR*2 [74834, Virginia State Bar]
Assistant Attorney General
441 Fourth Street, N.W., 6th Floor
Washington, D.C. 20001

2
Appearance entered under D.C. App. Rule 49(c)(4).
2
 (202) 727-9624(phone)
(202) 741-0569 (fax)
Email: patricia.donkor@dc.gov

Attorneys for the Metropolitan Police Department

Certificate of Service

I HEREBY CERTIFY that on April 14, 2011, a copy of the foregoing Motion to Quash

was mailed to:

Craig D. Roswell
Brett A. Buckwalter

Niles, Barton & Wilmer, L.L.P.

111 S. Calvert Street
Ste. 1400
Baltimore, MD 21202
Counsel for Joseph R. Price

/s/ Patricia B. Donkor

PATRICIA B. DONKOR

Assistant Attorney General

3
 SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION
____________________________________
)
ESTATE OF ROBERT E. WONE, )
By Katherine E. Wone )
)
Plaintiff, ) 2008 ca 8315
) Judge Michael L. Rankin
) Calendar 7
v. )
)
JOSEPH R. PRICE, et al., )
)
Defendants. )
___________________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE

METROPOLITAN POLICE DEPARTMENT’S MOTION TO QUASH THE
DEPOSITIONS OF DETECTIVE XANTEN AND MOTION TO QUASH THE
DEPOSITIONS OF DETECTIVES WHALEN, NORRIS, AND SERGEANT WAGNER
FOR THE LIMITED PURPOSE OF ASSERTING THE LAW ENFORCEMENT
PRIVILEGE AS TO SUBJECT MATTER NOT PREVIOUSLY DIVULGED BY LAW
ENFORCEMENT

On April 6, 2011, defendant filed notices of depositions for 1) Detective Xanten, presently

scheduled for Monday, April 18, 2011, at 10:00 a.m., 2) Detective Milton Norris, presently

scheduled for Monday, April 18, 2011, at 1 p.m.; 3) Detective Daniel Whalen, presently

scheduled for Wednesday, April 20, 2011, at 10:00 a.m.; and 4) Sergeant Daniel Wagner

presently scheduled for Wednesday, April 20, 1011, at 1:00 p.m. Detective Xanten did not

testify during the companion criminal trial. Detectives Whalen and Norris and Sergeant Wagner

did testify at the companion criminal trial.

Undersigned counsel is unaware of the expected topics that counsel intends to cover during

the scheduled deposition. However, to the extent that any participating attorney seeks to explore

subject matter and elicit testimony about information not previously divulged during the related

4
criminal investigation, criminal trial, and pendency of the instant civil matter, MPD exerts the

law enforcement privilege over such topics and moves to quash any and all questions concerning

topics covered by the law enforcement privilege. Because Detective Xanten did not testify at the

criminal trial, MPD requests that the notice of deposition of Detective Xanten be quashed in its

entirety. With respect to the other officers, MPD requests that any deposition of them be limited

by the law enforcement privilege because there remains an open criminal investigation.

Additionally, none of the officers have been personally served with notice of the depositions.

Furthermore, the witness fee has not been paid for any of these officers. Therefore, on this

reason alone, the notices should be quashed.

II. LEGAL STANDARD

Superior Court Civil Procedure Rule 26(b)(1) permits parties to obtain discovery

regarding matters that are not privileged. In this case, the information the parties seek is

protected by the law enforcement privilege.

The law enforcement privilege is a qualified

privilege recognized at common law that is designed to protect
ongoing investigations from premature disclosure, disruption, and
compromise. The purpose of the privilege is to protect the
confidentiality of sources as well as law enforcement strategies and
accumulated evidence. The privilege is a conditional one that must
be asserted with particularity by a high official of the law
enforcement agency who is both authorized to assert the privilege
on behalf of the agency and who is in a position to know that the
privilege is necessary. The assertion of the privilege must be
formal and delineated. The party claiming the privilege must have
(1) seen and considered the contents of the documents and (2)
himself formed the view that on grounds of public interest, they
ought not be produced, (3) state with specificity the rationale of the

5
 claimed privilege [namely, 3(a)] specifying which documents or
class of documents are privileged and [3(b)] for what reasons.

Once the privilege has been properly claimed, the burden

shifts to the party seeking the documents and testimony to
demonstrate a need for the materials and the lack of harm that
would result from disclosure. The court must then balance the
public interest in non-disclosure against the need asserted. A list of
factors to be considered by the trial judge in conducting this
balancing process was identified in) and has oft been cited since.

When weighing the competing interests, the trial court must

evaluate: (1) the extent to which disclosure will thwart
governmental processes by discouraging citizens from giving the
government information; (2) the impact upon persons who have
given information of having their identities disclosed: (3) the
degree to which governmental self-evaluation and consequent
program improvement will be chilled by disclosure; (4) whether
the information sought is factual data or evaluative summary; (5)
whether the party seeking discovery is an actual or potential
defendant in any criminal proceeding either pending or reasonably
likely to follow from the incident in question; (6) whether the
police investigation has been completed; (7) whether any
interdepartmental disciplinary proceedings have arisen or may
arise from the investigation; (8) whether the appellant's suit is non-
frivolous and brought in good faith; (9) whether the information
sought is available through other discovery or from other sources;
(10) the importance of the information sought to the appellant's
case.

Kay v. Pick, 711 A.2d 1251, 1256 – 1257 (D.C. 1998) (internal citations and quotations omitted).

Here, undersigned counsel is unaware of the topics that counsel intends to cover during the

scheduled deposition. However, on April 1, 2010, undersigned counsel had an opportunity to

speak to Attorney Buckwalter. While Attorney Buckwalter was extremely cooperative, he was

candid in admitting that there is a strong likelihood that he will explore topics that may not have

been covered during the criminal case. He also admitted that he will not voluntarily limit the

6
scope of his deposition to subject matter previously explored during the criminal investigation,

criminal trial, and pendency of the instant civil case. Because the criminal investigation remains

open, matters not previously divulged are covered by the law enforcement privilege. See Exhibit

A, Declaration of Commander Hickson, Commander of the Criminal Investigations Division of

MPD As a result, to the extent that any participating attorney seeks to explore subject matter and

elicit testimony about information not previously divulged during the related criminal

investigation, criminal trial, and pendency of the instant civil matter, MPD exerts the law

enforcement privilege over such topics because they are covered by the law enforcement

privilege. See Kay, 711 A.2d at 1256 – 1257. Because Detective Xanten did not testify at the

criminal trial, MPD requests that the notice of deposition of Detective Xanten be quashed in its

entirety. Id. With respect to the other officers, MPD requests that any deposition of them be

limited by the law enforcement privilege. Additionally, none of the officers have been

personally served with notice of the depositions. Furthermore, the witness fee has not been paid

for any of these officers. Therefore, on this reason alone, the notices should be quashed.

IV. CONCLUSION

Accordingly, in addition to the relief requested in MPD’s April 1, 2011, Motion to

Quash, MPD respectfully requests that this Court grant its Motion to Quash and quash the

deposition notice of Detective Xanten in it’s entirely. With respect to the remaining officers,

MPD requests that this Court declare that the law enforcement privilege precludes counsel from

exploring subject matter and eliciting testimony about information not previously divulged

during the related criminal investigation, criminal trial, and pendency of the instant civil matter.

7
Dated: April 14, 2011

Respectfully submitted,
IRVIN B. NATHAN

Acting Attorney General for the District of Columbia

GEORGE C. VALENTINE

Deputy Attorney General, Civil Litigation Division

/s/ William B. Jaffe

WILLIAM B. JAFFE [DC Bar No. 502399]

Chief, General Litigation Section III

/s/ Patricia B. Donkor

PATRICIA B. DONKOR*3 [74834, Virginia State Bar]

Assistant Attorney General

441 Fourth Street, N.W., 6th Floor

Washington, D.C. 20001

(202) 727-9624(phone)

(202) 741-0569 (fax)

Email: patricia.donkor@dc.gov

Certificate of Service

I HEREBY CERTIFY that on April 14, 2011, a copy of the foregoing Motion to Quash

3
Appearance entered under D.C. App. Rule 49(c)(4).

8
was electronically mailed to via CASEFILEXPRESS:

Craig D. Roswell
Brett A. Buckwalter
Niles, Barton & Wilmer, L.L.P.
111 S. Calvert Street
Ste. 1400
Baltimore, MD 21202

Counsel for Joseph R. Price

Benjamin J. Razi, Esquire

Stephen W. Rodger, Esquire

Covington & Burling LLP

1201 Pennsylvania Avenue, NW

Washington, D.C. 20004

(202) 662-6000

Counsel for Plaintiff

David Schertler, Esquire

Robert Spagnoletti, Esquire

SCHERTLER & ONORATO LLP

601 Pennsylvania Ave., N.W.

North Building, 9th Floor

Washington, D.C. 20004

Counsel for Defendant Dylan M. Ward

9
Frank F. Daily, Esquire

Sean Edwards, Esquire

Larissa N. Byers, Esquire

The Law Offices of Frank F. Daily, P.A.

11350 McCormick Road Executive Plaza III, Suite 704

Hunt Valley, MD 21031

Counsel for Defendant Victor Zaborsky

Ralph C. Spooner

Spooner & Much, P.C.

530 Center Street NE, Suite 722

Salem, OR 97301

Counsel for Defendant Dylan M. Ward

/s/ Patricia B. Donkor

PATRICIA B. DONKOR

Assistant Attorney General

10
 SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION
____________________________________
)
ESTATE OF ROBERT E. WONE, )
By Katherine E. Wone )
)
Plaintiff, ) 2008 ca 8315
) Judge Michael L. Rankin
) Calendar 7
v. )
)
JOSEPH R. PRICE, et al., )
)
Defendants. )
___________________________________ )

ORDER

Upon consideration of the MPD’s Motion to Quash, and the entire record herein, and

Other Information thereto it is this

day of ___________, 2011, hereby

ORDERED that MPD’s Motion to Quash is GRANTED; and it is further

ORDERED that notice of deposition of Detective Xanten is quashed pursuant to the law

enforcement privilege; and it is further

ORDERED that the law enforcement privilege prohibits counsel from exploring subject

matter and eliciting testimony about information not previously divulged during the criminal

investigation, criminal trial, and pendency of the instant civil matter.

Michael L. Rankin

11
 Associate Judge

Copies to:

Patricia B. Donkor

Assistant Attorney General

441 Fourth Street, N.W.
Sixth Floor South
Washington, DC 20001
Counsel for Defendant

Craig D. Roswell
Brett A. Buckwalter
Niles, Barton & Wilmer, L.L.P.
111 S. Calvert Street
Ste. 1400
Baltimore, MD 21202

Counsel for Joseph R. Price

Benjamin J. Razi, Esquire

Stephen W. Rodger, Esquire

Covington & Burling LLP

1201 Pennsylvania Avenue, NW

Washington, D.C. 20004

(202) 662-6000

Counsel for Plaintiff

12
David Schertler, Esquire

Robert Spagnoletti, Esquire

SCHERTLER & ONORATO LLP

601 Pennsylvania Ave., N.W.

North Building, 9th Floor

Washington, D.C. 20004

Counsel for Defendant Dylan M. Ward

Frank F. Daily, Esquire

Sean Edwards, Esquire

Larissa N. Byers, Esquire

The Law Offices of Frank F. Daily, P.A.

11350 McCormick Road Executive Plaza III, Suite 704

Hunt Valley, MD 21031

Counsel for Defendant Victor Zaborsky

Ralph C. Spooner

Spooner & Much, P.C.

530 Center Street NE, Suite 722

Salem, OR 97301

Counsel for Defendant Dylan M. Ward

13