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Estate of ROBERT E. WONE, by KATHERINE E. WONE, as Personal Representative, Plaintiff, v. JOSEPH R. PRICE, VICTOR J. ZABORSKY, and DYLAN M. WARD, Defendants. Civil Action No. 008315-08 The Honorable Brook Hedge Next Court Event: December 8, 2010 Motions Hearing

PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OR FIFTH AMENDMENT INVOCATIONS BY DEFENDANT WARD Defendants’ opposition brief establishes the undisputed point that counsel is permitted to instruct a deposition witness not to answer “when necessary to preserve a privilege.” D.C. Super. Ct. R. 30(d)(1). But this is not the question before the Court. Instead, the issue presented by Plaintiff’s motion is whether Defendant Ward, irrespective of his counsel’s instructions, has to personally invoke his Fifth Amendment right in order to be permitted not to answer deposition questions on Fifth Amendment grounds. With respect to this core question, Defendants’ opposition is wholly unpersuasive. Plaintiff’s moving papers cited a series of cases holding that, in a civil deposition, only the deponent—not counsel—may invoke the Fifth Amendment privilege against selfincrimination. See Pl. Mem. at 4-5 (collecting cases). In response, Defendants rely overwhelmingly on cases involving criminal trial testimony and other inapposite circumstances.

Remarkably, Defendants have not cited a single case—and we are aware of none—that justifies or even addresses the particular deposition conduct of Defendant Ward in this case, which was to sit mutely in response to both substantive deposition questions and follow-up questions regarding whether his silence was intended as a Fifth Amendment invocation. It is not overstatement to say that there literally is no support—either in the Rules or the cases—for Defendant Ward’s conduct. In short, there is no reason to make Mrs. Wone, her attorneys, and the Court interpret Defendants’ silence—silence which might be interpreted differently in future proceedings. The Court should grant the motion to compel. ARGUMENT I. RULE 30(D)(1) DOES NOT JUSTIFY DEFENDANT WARD’S CONDUCT. Defendants argue that Rule 30(d)(1), which permits counsel to “instruct a deponent not to answer only when necessary to preserve a privilege,” justifies Defendant Ward’s near-total silence at his recent deposition. By its plain terms, Rule 30(d)(1) provides the limited menu of what defending counsel may do and say during a deposition without being obstructive. But nothing in Rule 30(d)(1) absolves the witness of his obligation to speak; permits counsel to testify in the witness’s place; or overrides Rule 37(a)(2), which provides that “[i]f a deponent fails to answer a question propounded or submitted under Rule 30 . . . the discovering party may move for an order compelling an answer.” Moreover, in their opposition, Defendants have not attempted to make any showing that an instruction not to answer was “necessary” with respect to any of the questions asked at Defendant Ward’s deposition. Most significantly, the Fifth Amendment privilege cannot in any way be implicated by the follow-up question, “Are you going to accept your counsel’s instruction?” See, e.g., Ward Tr. at 12:6-7. That yes-or-no question does not ask for -2-

an answer which might be privileged or which might expose a privileged communication. Thus, Defendant Ward’s silence in response to those questions was plainly improper. Even with respect to the substantive questions that Defendant Ward’s counsel instructed him not to answer, there is no indication that counsel’s instruction is necessary to preserve the privilege. As the Sixth Circuit explained in United States v. Mayes, in language omitted by an ellipsis in Defendants’ quotation of the case, “the nature of the privilege is such that in the final analysis the controlling decision is that of the witness himself.” 512 F.2d 637, 649 (6th Cir. 1975). To allow a deposition which consists almost entirely of counsel’s interjected instructions could jeopardize Defendants’ “controlling decision[s]” by discouraging their active participation in making decisions about their own defenses. That result also would undermine the general rule that “the court should always keep the door open for a decision by the witness to testify rather than discourage it.” In re Grand Jury Subpoenas Served on Farber, 574 A.2d 449, 457 (N.J. Super. Ct. App. Div. 1989). II. THE FIFTH AMENDMENT CASES CITED BY DEFENDANTS DO NOT JUSTIFY DEFENDANT WARD’S CONDUCT. In their opposition brief, Defendants cite several cases which they would have the Court believe justify Defendant Ward’s conduct at his recent deposition. In fact, Defendants’ cases—only one of which involved a civil deposition—do not help Defendants’ opposition and actually counsel in favor of granting the motion to compel. A. The Sole Cited Case Involving a Civil Deposition is Unavailing for Defendants. The only case cited by Defendants which concerns a Fifth Amendment invocation during a civil deposition is Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 1975). In that case, the trial court rejected the plaintiff’s attempt to ask the jury to draw four increasingly attenuated adverse inferences from the defendant’s Fifth Amendment invocation in -3-

response to a single deposition question. After an unfavorable jury verdict, the plaintiff appealed that and other issues. On appeal, the defendant, having been successful in keeping the question and Fifth Amendment invocation from the jury at trial, additionally argued that he had not actually invoked the Fifth Amendment during the deposition because counsel had instructed him not to answer. See id. at 1263-64. The Ninth Circuit rejected the defendant’s argument that he had not invoked the privilege, but upheld the trial court’s decision on that issue in the defendant’s favor. Quite unlike the Ninth Circuit in Rudy-Glanzer, which considered the issue only after the deposition and trial were long since complete, this Court now has the opportunity to stave off any future dispute about the effectiveness of Defendants’ Fifth Amendment invocations. All possible doubt about the sufficiency of Defendants’ Fifth Amendment invocations can be preemptively resolved, without any harm to Defendants, by requiring them to make clear statements that they intend to invoke the privilege. B. The Criminal Cases Cited by Defendants Are Inapposite. Defendants rely most heavily on People v. Apodaca, a criminal case from California. In Apodaca, the trial court declined to allow a non-party witness to testify for one of the defendants when it became clear that there could be no meaningful cross-examination because of the witness’s planned Fifth Amendment invocations. See 21 Cal. Rptr. 2d 14, 19 (Cal. Ct. App. 1993). The appellate court upheld a decision to exclude the testimony, explaining that it would have been a “wasteful exercise to insist that [the witness] repeat the invocation . . . for the sake of formality.” Id. at 20. Here, however, it would be neither wasteful nor a formality to require Defendants themselves to assert the Fifth Amendment. Under Rule 30(d)(2), Plaintiff is entitled to one day of seven hours of deposition testimony from each Defendant, absent a further order of court. No -4-

waste of judicial resources will occur by allowing Plaintiff to use her own deposition time to ensure that Defendants actually intend to invoke the Fifth Amendment. Moreover, Mrs. Wone intends to seek an instruction allowing the jury to draw an adverse inference from Defendants’ Fifth Amendment invocations. As a result, Defendants’ testimony, even if it consists of Fifth Amendment invocations, is important substantive evidence—far from a mere formality. The other cases cited by Defendants are likewise unavailing: • In United States v. Johnson, 752 F.2d 206 (6th Cir. 1985), a non-party witness refused to testify, even though the prosecutors and court had given him immunity for selfincriminating statements. Because the witness had immunity relating to selfincrimination, the Fifth Amendment was not implicated. In United States v. Mayes, 512 F.2d 637 (6th Cir. 1975), the court held that it was improper for the defendant’s counsel to attempt to invoke the privilege on behalf of the defendant’s relatives in order to prevent them from testifying against the defendant. Id. at 648-51. The court specifically stated that “the nature of the privilege is such that in the final analysis the controlling decision is that of the witness himself.” Id. at 649. In United States v. Colyer, 571 F.2d 941 (5th Cir. 1978), the Fifth Circuit held that the trial court should not have invoked the Fifth Amendment privilege on behalf of a pro se witness who did not invoke the privilege himself. In addition to observing that “[t]he record does not reflect any unwillingness on the part of Miller to answer the question, or that he himself invoked the Fifth Amendment,” id. at 944, the court went on to emphasize the importance of allowing the witness to make his or her own personal decision about whether to testify, explaining that “the better practice would have been to ask the witness either whether he desired to claim the privilege or whether he wanted to consult with his attorney.” Id. at 946. In United States v. Pritchard, Civ. Action No. 70-8, 1970 WL 313 (N.D. Ala. Feb. 6, 1970), the IRS attempted to issue a summons directly to a tax attorney for client records in his possession. In a written response, the attorney invoked the Fifth Amendment on behalf of his clients, as well as objecting to the summons on several other grounds. This case says nothing about Defendant Ward’s obligation to assert his Fifth Amendment rights himself in a deposition in which he—not his counsel—is the witness. Finally, Clifton v. Granger, 53 N.W. 316 (Iowa 1892), was an “action for seduction” in which the Court “presumed” that counsel’s invocation of the privilege during in-court questioning ultimately came from the witness herself. Here, rather than interpreting silence and making assumptions, Plaintiff submits that the most straightforward and efficient way of finding out whether the Defendants intend to invoke the Fifth Amendment is by having them say so.


Unlike the above-described cases, the central cases relied upon by Plaintiff address the exact situation here—Fifth Amendment invocations by a deponent in a civil case. See Pl. Mem. 4-5 (collecting cases). Nothing in Defendants’ opposition casts doubt on these well-reasoned decisions. III. REQUIRING DEFENDANT WARD PERSONALLY TO INVOKE THE FIFTH AMENDMENT, IF HE SO CHOOSES, WOULD NOT IMPOSE ANY BURDEN OR RESULT IN ANY PREJUDICE. As Mrs. Wone explained in her opening brief, there is a risk that, without an actual witness invocation on the record, she will be unable to ask the jury to draw an adverse inference from counsel’s instruction. See Pl. Mem. at 6-7. Combined with a standard jury instruction that the “statements of counsel are not evidence,” there is a risk that a jury might improperly disregard all of the questions and non-answers in Defendant Ward’s deposition, unfairly prejudicing Mrs. Wone’s case. On the other hand, requiring Defendant Ward to personally invoke his Fifth Amendment privilege would impose no burden at all on him or result in any prejudice. Defendants’ opposition does not even attempt to articulate any such burden or prejudice. Indeed, “Defendant Ward . . . was and is capable of expressing his [agreement or] disagreement with his counsel’s instruction if he so chooses as to each and every question that will be asked.” Defs.’ Opp. at 6. That is all Plaintiff is seeking here: that Defendant Ward verbally indicate whether he intends to invoke the Fifth Amendment. Surely that it is not too much to ask in what is, after all, a “Deposition Upon Oral Examination.” D.C. Super. Ct. R. 30. CONCLUSION For the reasons set forth above and in Plaintiff’s opening memorandum, the Court should grant Plaintiff’s motion to compel.


Respectfully submitted, /s/ Benjamin J. Razi Benjamin J. Razi ( D.C. Bar No. 475946 Stephen W. Rodger ( D.C. Bar No. 485518 Charles Kitcher ( D.C. Bar No. 986226 Brett C. Reynolds ( D.C. Bar No. 996100 Jason A. Levine ( D.C. Bar No. 996121 COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, D.C. 20004 (202) 662-6000 Patrick M. Regan ( D.C. Bar No. 336107 REGAN ZAMBRI & LONG, PLLC 1919 M Street, NW, Ste 350 Washington, D.C. 20036 (202) 463-3030 Dated: November 30, 2010 Counsel for Plaintiff


CERTIFICATE OF SERVICE I hereby certify that on November 30, 2010, I caused a copy of Plaintiff’s Reply Memorandum in Support of Motion to Compel Testimony or Fifth Amendment Invocations by Defendant Ward to be served via CaseFileXpress on the following counsel: David Schertler Robert Spagnoletti Schertler & Onorato LLP 601 Pennsylvania Ave., NW Washington, D.C. 20004 Ralph C. Spooner 530 Center Street, NE Suite 722 Salem, OR 97301-3740 Counsel for Defendant Dylan Ward Frank F. Daily Sean 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 Counsel for Defendant Victor Zaborsky Craig D. Roswell Brett A. Buckwalter Heather B. Nelson Niles, Barton, & Wilmer LLP 111 S. Calvert Street, Suite 1400 Baltimore, MD 21202 Counsel for Defendant Joseph Price

/s/ Benjamin J. Razi Benjamin J. Razi