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Filed

D.C. Superior Court


11 Feb 28 P06:57
Clerk of Court

SUPERIOR COURTFOR THE DISTRICT OF COLUMBIA


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

MOTION TO QUASH OF NON-PARTY THE


METROPOLITAN POLICE DEPARTMENT OF DEFENDANT JOSEPH PRICE’S
SUBPEONA TO PRODUCE DOCUMENTS AND OTHER INFORMATION

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

defendant, Joseph Price, which requests that MPD release highly confidential, privileged

information that is of minimal relevance to the actual claims and defenses in this case. As

explained more fully infra, this Court should quash defendant’s subpoena.

I. FACTUAL BACKGROUND

On August 2, 2006, Robert E. Wone was killed while at defendants’ home, located at 1509

Swann Street, N.W. in Washington, D.C. On November 25, 2008, plaintiff filed a lawsuit

against the defendants for wrongful death, negligence, spoliation of evidence and conspiracy.

On May 17, 2010 a criminal trial against the defendants commenced. The defendants were

charged with tampering with evidence, obstruction of justice, and conspiracy to obstruct justice.

The trial ended on June 29, 2010. The criminal trial court dismissed the tampering charges

against defendants Victor Zaborsky and Dylan Ward. All defendants were acquitted on all

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remaining counts. On January 14, 2011, defendant served on MPD a subpoena for a deposition

duces tecum, requesting:

all documents in his possession, custody and control listed below. .


. . 1) All files relating to Robert Eric Wone: Date of Birth 6/1/74;
Social Security Number: 095-66-xxxx. All documents produced
shall be for the period 8/2/06 to present. 2) All documents in the
possession or control of the Metropolitan Police Department
related to the investigation of the death of Robert Eric Wone: Date
of Birth: 6/1/74; Social Security Number: 095-66-xxxx, including
but not limited to the case files of the Metropolitan Police
Department employees who conducted testing related to the death
of Robert Eric Wone. 3) All correspondence with Katherine
Wone, the Estate of Robert Eric Wone, or their attorneys, agents,
and/or representatives, regarding the autopsy of Robert Eric Wone
and the investigation relating to his death. 4) All working files
(both hard copy and electronic), notes, or memoranda of the
Metropolitan Police Department relating to the death of Robert
Eric Wone. 5) All documents identifying employees of the
Metropolitan Police Department who have investigated or
conducted research relating to the death of Robert Eric Wone. 6)
All records in the control of the following employees of the
Metropolitan Police Department relating to the investigation of the
death of Robert Eric Wone: Detective Bryan Waid; Detective
Danny Whalen: Detective Wagner: and, Detective Norris.

Exh. A, Subpoena. Undersigned counsel was informed by the General Counsel’s Office for

MPD that, because the documents relate to an ongoing criminal investigation, MPD could not

provide the requested documents to defendant. Moreover, defendant has failed to provide funds

to cover the cost of producing the documents in response to his requests.

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.

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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
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;

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(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).

II. This Court should grant the District's Motion to Quash because 1) disclosure
would likely discourage future citizen cooperation with law enforcement and
thereby thwart the effectiveness of criminal investigations and 2) the information
is of minimal relevance and the parties have made no showing that the
information is not available from other sources.

Defendant did not addressed any of the Kay v. Pick factors in his Notice of Deposition

Dues Tecum. Similar to the plaintiff in McPeek v. Ashcroft1, 202 F.R.D. 332 (D.D.C.2001),

defendant “unfortunately ignores … the factors …, and thus never indicate[s] why the weighing

of them compels disclosure.” Id. at 336. In McPeek, Magistrate Judge Facciola noted that the

“failure to discuss those factors, found in controlling Circuit authority, could be deemed a waiver

of any right to do so and require [the judge] to sustain the defendants’ claim of privilege.” Id.

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McPeek v. Ashcroft, a federal matter, applied the Tuite v. Henry, 98 F.3d 1411, 1417 ((D.C.
Cir. 1996), factors. The Tuite v. Henry factors are identical to the enumerated Kay v. Pick
factors.
(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 plaintiff’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 plaintiff’s
case.
Tuite v. Henry, 98 F.3d at 1417, citing Frankenhauser v. Rizzo, 59 F.R.D. 339,
344 (E.D. Pa. 1973).
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MPD urges this Court to follow the suggestion of Magistrate Judge Facciola and find that

defendant waived his right to the privileged documents, and sustain the MPD’s claim of

privilege. Should this Court choose to decide the issue on the merits, however, MPD

demonstrates below that application of the Kay v. Pick factors weigh in favor of sustaining

MPD’s claims of privilege.2

a. Disclosure of the investigative file will thwart governmental processes by


discouraging citizens from giving the government information.

Disclosure will have a chilling effect on witnesses. “The purpose of the privilege is the

furtherance and protection of the public interest in effective law enforcement. The privilege

recognizes the obligation of citizens to communicate their knowledge of the commission of

crimes to law-enforcement officials and, by preserving their anonymity, encourages them to

perform that obligation.” Roviaro v. United States, 353 U.S. 53, 59 (1957). The argument in

favor of protecting the civilian witnesses and the police investigation is particularly compelling

as the crime here was a homicide that has not yet been solved. The file contains names of

witnesses. If information regarding the investigation and/or the witnesses was revealed to the

suspects, their cohorts, or the media, the safety of these witnesses most certainly would be

jeopardized. Successful investigation and prosecution of crime relies heavily on the cooperation

of citizens. It is in the public policy to avoid revealing witness identities in order to foster future

cooperation.

b. Disclosure of the investigative file will negatively impact persons who have given
information of having their identities disclosed.

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Factors c), d), and h) are inapplicable to the instant case; and therefore will not be addressed in
this motion.
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The facts of this case objectively demonstrate that concern for the safety of witnesses is

warranted. The security of witnesses is of particular concern as the homicide case remains

unsolved from a prosecutorial standpoint as the prosecutors may later bring charges based on

new or additional evidence. Thus, the potential suspects and suspects’ cohorts have an incentive

to ensure that additional evidence is not provided to the police or that the witnesses cease their

cooperation with law enforcement.

Likewise, if the file is released, witnesses’ recollections may be impacted. For example,

defendant Joseph R. Price, himself, is a witness in the homicide case. If he is permitted to learn

what other witnesses recollect, his own personal recollection could be influenced by the

memories of other witnesses. Therefore, not only is the safety of the witnesses a significant

issue, but the disclosure of the investigative file could significantly hamper future investigation,

and any attempt to successfully prosecute the murder case. This is certainly a negative impact

that weighs in favor of sustaining the privilege.

c. The nature of civil action does not warrant disclosure.

Disclosure is not warranted in this case. In the process of investigation and preparing for

trial, law enforcement often advance theories and then rule them out upon further investigation.

MPD has a substantial interest in maintaining the privacy of the deliberations of their officers in

investigating crimes. Disclosure of the information claimed privileged would reveal the

investigative techniques of MPD’s detectives and thereby risk the impairment of future homicide

investigations. Accordingly, the Court of Appeals for the District of Columbia Circuit has

opined that it is proper to begin the analysis “with the proposition that there is indeed a public

interest in minimizing disclosure of documents that would tend to reveal law enforcement

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investigative techniques or sources.” Black v. Sheraton Corp. of America, 564 F.2d 531, 545

(D.C. Cir. 1977).

In addition to the evaluative processes of the detectives investigating the crime, the file

also contains the conclusions of the witnesses. In interviews, the witnesses offered facts and

their conclusions based upon the facts. These evaluations warrant protection from discovery in

this civil case. As other courts have concluded, the distinction between what is “factual” and

what is “evaluative” is “quite elusive and often arbitrary.” King v. Conde, 121 F.R.D. 180, 193

(E.D.N.Y. 1988). Hence, “most courts weigh this factor in light of the relevant importance of the

materials to plaintiffs’ case.” Tuite, 181 F.R.D. at 180. As demonstrated infra, the information

the parties seek is marginally – if at all – relevant to the claims and defenses in civil action, and

can be obtained through other means. Hence, this factor does not weigh in favor of disclosure.

Id. at 180-81.

d. MPD’s interest in privilege supersedes the civil discovery interests.

MPD’s interest in the privilege trumps defendant’s interests. In circumstances where the

party seeking disclosure of the privileged information is the subject of an actual or pending

criminal proceeding, the argument to compel disclosure is much stronger due to the

constitutional rights guaranteed to the accused. See Roviaro, 353 U.S. at 60-61. Here, the

criminal matter as to defendant is over. Defendant was exculpated. In this civil case, where

defendant is no longer a criminal defendant, the government’s interest in its privilege supersedes

the civil discovery interests.

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e. MPD’s interests in confidentiality remain strong.

Despite the fact that a criminal trial involving the defendants has occurred, this matter is

still open for prosecution. Moreover, the Court of Appeals for the District of Columbia Circuit

has noted:

It is clear that if investigatory files were made public subsequent to


the termination of enforcement proceedings, the ability of any
investigatory body to conduct future investigations would be
seriously impaired. Few persons would respond candidly to
investigators if they feared that their remarks would become public
record after the proceedings. Further, the investigative techniques
of the investigating body would be disclosed to the general public.

Black, 564 F.2d at 546, quoting Aspin v. Department of Defense, 160 U.S. App. D.C. 231, 491

F.2d 24, 30 (D.C. Cir. 1973). In this civil tort case for monetary damages, where the homicide

remains unsolved, the government’s interest in its privilege supersedes the civil discovery

interests.

f. Whether the information sought is available through other discovery


or from other sources.

Defendant fails to particularize why he is unable to obtain the materials through other

means. For example, some of the materials defendant has requested involve correspondences

between plaintiff, the decedent’s wife, and MPD. Defendant fails to show why these materials

cannot be obtained from plaintiff through the civil discovery process.

Additionally, in defendants’ Joint Motion to Dismiss Counts One, Three and Four, or in

the alternative, Motion for Partial Summary Judgment, filed on October 15, 2010, defendants

state that the instant civil case arises from the same facts as the criminal matter. See Motion for

Summ. J. at 3. In support of his defense of plaintiff’s claims, defendant is free to interview

civilian witnesses that became known to him during the criminal matter, refer to any discovery

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materials defendant received during the criminal matter, and examine multiple publicly-available

sources available in the community, the media and other sources.

g. The importance of the information sought to the defendant’s case

This factor is often considered “the most crucial and important factor suggested by the

court in Frankenhauser.” Tuite, 181 F.R.D. at 183-84 (citations omitted). As explained above,

Defendant has not shown how the material sought in the subpoena is related to his defense of

plaintiff’s claims. Additionally, as explained above, there are other sources available to the

parties that would have information far more germane to the claims and defenses in this case.

Hence, MPD urges this Court to quash defendant’s subpoena.

IV. CONCLUSION3

MPD submits that a balancing of the Kay v. Pick factors weighs against disclosure. The

non-parties have demonstrated that the disclosure of the information requested would likely

discourage future citizen cooperation with law enforcement and thereby thwart the effectiveness

of criminal investigations. Moreover, the information is of minimal relevance and the parties

have made no showing that the information is not available from other sources. Accordingly,

MPD respectfully requests that this Court grant its Motion to Quash defendant’s subpoena.

Dated: March 1, 2011

Respectfully submitted,
IRVIN B. NATHAN

Acting Attorney General for the District of Columbia

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Furthermore, defendant has failed to provide funds to cover the cost of producing the documents for his requests.

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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*4 [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 March 1, 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

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

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Ste. 1400
Baltimore, MD 21202
Counsel for Joseph R. Price

/s/ Patricia B. Donkor

PATRICIA B. DONKOR

Assistant Attorney General

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

ORDER

Upon consideration of the MPD’s Motion to Quash Defendant’s Subpoena and Other

Information thereto, and the entire record herein, it is this day of ___________, 2011, hereby

ORDERED that the District’s Motion to Quash is GRANTED.

Michael L. Rankin

Associate Judge

Copies to:

Patricia B. Donkor
Assistant Attorney General
441 Fourth Street, N.W.
Sixth Floor South
Washington, DC 20001

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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

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