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Filed

D.C. Superior Court


11 Apr 01 P05:29
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. )
___________________________________ )

METROPOLITAN POLICE DEPARTMENT’S MOTION TO QUASH FOR THE


LIMITED PURPOSE OF ASSERTING THE LAW ENFORCEMENT PRIVILEGE
DURING FORMER DETECTIVE BRYAN WAID’S DEPOSITION AS TO SUBJECT
MATTER NOT PREVIOUSLY DIVULGED BY DECTECTIVE WAID AND LAW
ENFORCEMENT

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

deposition of defendant, Joseph Price, which seeks to depose former Detective Bryan Waid on

April 8, 20111, in Ft. Myers, Florida, for the limited purpose of asserting the law enforcement

privilege over subject matter not previously divulged by Detective Waid and law enforcement

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

civil case. 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.

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On Friday, March 25, 2011, undersigned counsel spoke to Attorney Craig Roswell. Mr. Roswell
indicated that the deposition will likely be postponed. MPD seeks the same relief over any rescheduled
deposition of former Detective Waid. However, today, April 1, 2011, undersigned counsel spoke to Mr.
Buckwalter, who indicated that he believes the deposition will take place on April 8, 2011, as scheduled.
MPD seeks the same relief over any rescheduled deposition of former Detective Waid.

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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
(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 1, 2011, a copy of the foregoing Motion to Quash

was mailed to:

Craig D. Roswell

2
Appearance entered under D.C. App. Rule 49(c)(4).
2
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

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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


METROPOLITAN POLICE DEPARTMENT’S MOTION TO QUASH FOR THE
LIMITED PURPOSE OF ASSERTING THE LAW ENFORCEMENT PRIVILEGE
DURING FORMER DETECTIVE BRYAN WAID’S DEPOSITION AS TO SUBJECT
MATTER NOT PREVIOUSLY DIVULGED BY DECTECTIVE WAID AND LAW
ENFORCEMENT

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 March 21, 2011, defendant filed a notice for deposition of former

Detective Bryan Waid to take place on April 8, 20113, in Ft. Myers, Florida.

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

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.

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

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On Friday, March 25, 2011, undersigned counsel spoke to Attorney Craig Roswell. Mr. Roswell
indicated that the deposition will likely be postponed. However, today, April 1, 2011, undersigned
counsel spoke to Mr. Buckwalter, who indicated that he believes the deposition will take place on April 8,
2011, as scheduled. MPD seeks the same relief over any rescheduled deposition of former Detective
Waid.

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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;
(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

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

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

criminal trial, and pendency of the instant civil case. 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.

IV. CONCLUSION

Accordingly, MPD respectfully requests that this Court grant its Motion to Quash for the

limited purpose of declaring 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.

Dated: April 1, 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]

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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 April 1, 2011, a copy of the foregoing Motion to Quash

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


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

8
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

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
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Counsel for Defendant Dylan M. Ward

/s/ Patricia B. Donkor

PATRICIA B. DONKOR

Assistant Attorney General

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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 Defendant’s deposition of former

Detective Bryan Waid, and the entire record herein, and Other Information thereto it is this

day of ___________, 2011, hereby

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

Associate Judge

Copies to:

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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

David Schertler, Esquire

Robert Spagnoletti, Esquire

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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

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