PRICE, VICTOR ZABORSKY, and DYLAN WARD, Defendants * * * * * * * * * * * * * Civil Action No. 0008315-08 The Honorable Michael L. Rankin Next Event: September 7, 2011 Pre-Trial Conference

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ OPPOSITION TO THE 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 DETECTIVE WAID AND LAW ENFORCEMENT Defendants, by their respective undersigned counsel, respectfully submit this memorandum of points and authorities in support of their opposition to the Motion to Quash Deposition filed by the Metropolitan Police Department (“MPD”). I. INTRODUCTION On November 25, 2008, Plaintiff Katherine Wone, as Personal Representative of the Estate of Robert Wone (hereinafter “the Estate”) filed a four-count civil Complaint against the Defendants, alleging claims of Wrongful Death (Count One), NegligenceFailure to Aid (Count Two), Spoliation of Evidence (Count Three), and Conspiracy

(Count Four). The claims arise from the August 2, 2006 death of Robert Wone at the former home of Defendants Price and Zaborsky, located at 1509 Swann Street, N.W., Washington, D.C. Plaintiff has candidly asserted, at the outset of this matter and at multiple points since, that its Complaint is founded in near entirety upon the investigation conducted by MPD. Indeed, Plaintiff’s November 2008 Complaint and the September 2010 Amended Complaint include a vast volume of content drawn directly from Detective Waid’s Affidavit of October 28, 2008 in support of an arrest warrant for Dylan Ward. The instant litigation was stayed by this Court on February 26, 2009, in order to allow criminal prosecution of Defendants to proceed. 1 The criminal trial commenced on May 17, 2010, and ended on June 29, 2010. In that case, Defendants were charged with tampering with evidence, obstruction of justice and conspiracy to obstruct justice, all arising from the same facts alleged by Plaintiff. MPD was called to present extensive evidence at trial and multiple MPD detectives who participated in the investigation were presented as witnesses before the Court. During the pendency of the criminal action, the government produced to Defendants voluminous materials relating to the MPD investigation, and many MPD witnesses, including Bryan Waid, were made available to be interviewed by Defendants’ criminal defense attorneys. No restrictions were placed by the government or the MPD upon the scope of these interviews. Throughout the criminal case and during the trial, the government argued that Defendants, or someone


In the two years prior to criminal charges being brought, the MPD’s criminal investigation focused exclusively on the Defendants as being responsible for Wone’s death, and the MPD publicly espoused its theories of Defendants’ alleged wrongdoing. The police executed numerous search warrants and dozens of witnesses testified before the grand jury in an effort to develop evidence that would link the Defendants to Wone’s death. Prosecutors threatened each Defendant with prosecution and offered to make ‘deals’ with each Defendant if he would cooperate against the others.


known to them, were responsible for Mr. Wone’s death. For example, in its Opposition to Motion for Judgment of Acquittal, the government stated: [N]o intruder entered 1509 Swann Street, N.W. on August 2, 2006 and murdered Robert Wone. Thus, the murderer was either one of the defendants, or someone known to them who was able to enter without breaking. However, in all of their statements, the defendants maintained that they were the only people home that night with Robert Wone. This fact is the starting point of the assessment of the obstruction of justice evidence against Price, Ward, and Zaborsky. Each defendant gave statements that, to varying degrees, suggested that an intruder entered their home and committed the murder. The obstruction of justice stems from the fact that they withheld information from the police, instead blaming an unknown, unseen, unheard “intruder.” Because they individually, and collectively, failed to tell the police what actually happened to Robert Wone, they conspired to obstruct justice and in fact did obstruct justice . . . . MJOA, p. 11-12. 2 After hearing the evidence presented, the tampering charges against Ward and Zaborsky were dismissed by the Court. acquitted on all the remaining counts. Defendants have sought to depose MPD witnesses to gather information directly relevant to the allegations in Plaintiff’s Complaint and to potential dispositive and evidentiary motions. The first noted deposition was for former MPD Detective Bryan Waid – the former lead detective on the investigation – who, significantly, no longer worked for the MPD by the time the criminal trial commenced. 3 MPD has moved to quash, in part, any MPD depositions in an effort to limit the depositions in scope based upon the law enforcement privilege. MPD has not satisfied procedural requirements for asserting this privilege and declines to express its position on any of the factors relevant to considering an assertion of this qualified privilege. Based upon the fact that there has
The MJOA was attached as “Exhibit 2” to Defendants’ Memorandum of Points and Authorities in Support of Opposition to Plaintiff’s Motion to Compel Answers to Deposition Questions. 3 Det. Waid’s deposition was originally scheduled for April 8, 2011. Due to the filing of the instant Motion by the MPD and the fact that the deposition has to take place out of the District, the deposition was postponed. Since the filing of the MPD’s Motion, Depositions have been noted for MPD witnesses William Xanten (April 18, 2011), Milton Norris (April 18, 2011), Daniel Whalen (April 20, 2011), and Daniel Wagner (April 20, 2011).

Defendants were subsequently


already been a criminal prosecution of the Defendants that required the MPD to divulge the facts and circumstances of its investigation, there is little reason to believe that the privilege has any significant application in the present civil case. The MPD cannot now try to close the door that the government chose to open during its unsuccessful criminal prosecution. In addition, Defendants have a strong interest in conducting this MPD

discovery because the Plaintiff’s allegations are principally based upon the MPD’s statements and investigation. Thus, MPD’s Motion should be denied. II. THE ASSERTION OF THE LAW ENFORCEMENT PRIVILEGE IS PROCEDURALLY DEFICIENT AND MPD’S MOTION SHOULD BE DENIED FOR THAT REASON ALONE. Defendants seek to conduct discovery on information known to witnesses expected to be called to testify at trial. MPD has moved to quash, in part, the depositions of these witnesses on the general assertion that information known to these detectives but not previously disclosed in the course of the prior criminal action is properly withheld under the law enforcement privilege. Initially, MPD’s motion is procedurally insufficient to present a proper assertion of the privilege in that it lacks a description of information subject to privilege and a certification that the official asserting the privilege has personally reviewed the information proposed to be withheld to confirm that the privilege properly applies. The law enforcement privilege is a formal privilege which must be raised according to well-settled procedure. To properly invoke a claim of law enforcement privilege, the governmental entity invoking the privilege must meet three requirements: “(1) there must be a formal claim of privilege by the head[s] of the department[s] having control over the requested information; (2) assertion of the privilege must be based on


actual personal consideration by [those] official[s]; (3) the information for which the privilege is claimed must be specified, with an explanation of why it properly falls within the scope of the privilege.” Alexander v. FBI, 186 F.R.D. 154, 167 (D.D.C. 1999) quoting In re Sealed Case, 272 U.S. App. D.C. 314, 856 F.2d 268, 271 (D.C. Cir. 1988) (citing Friedman v. Bache Halsey Stuart Shields. Inc., 238 U.S. App. D.C. 190, 738 F.2d 1336, 1341-42 (D.C. Cir. 1984); Black v. Sheraton Corp., 184 U.S. App. D.C. 46, 564 F.2d 531, 542-43 (D.C. Cir. 1977)). “The purpose of this procedural requirement is to insure that subordinate officials do not lightly or mistakenly invoke the government's privilege in circumstances not warranting its application.” Branch v. Phillips Petroleum Co., 638 F.2d 873, 882 (5th Cir. 1981). “Importantly, across-the-board claims of law enforcement privilege supported only by conclusory statements will not suffice.” Alexander v. FBI, 186 F.R.D. at 167. Here, MPD has not set forth an appropriate affidavit from an authorized official affirming that official’s personal review of the information sought through discovery and confirming that official’s determination that specified categories of information are appropriately privileged and why. Thus, the privilege has not been properly asserted. Even if we accept the MPD’s motion as a sworn statement invoking the privilege, it lacks necessary information as to who reviewed the contested material, what categories of information are being withheld and why. Jurisprudence is plain that this is not sufficient. Lewis v. City of Chicago, 2004 U.S. Dist. LEXIS 23425, 7-8 (N.D. Ill. Nov. 15, 2004) (rejecting assertion of law enforcement privilege as procedurally insufficient where privilege was asserted in pleading but not accompanied by any indication that an authorized official reviewed the information sought and determined that the privilege


properly applies to expressly stated categories of information or documents); Hernandez v. Longini, 1997 U.S. Dist. LEXIS 18679, 1997 WL 754041, at *4 (N.D. Ill. Nov. 13, 1997) (rejecting assertion of law enforcement privilege as procedurally insufficient where privilege was asserted in pleading but not accompanied by required averments and explaining that before a court considers the merits of whether the law enforcement privilege applies, “the responsible official in the [governmental] department [asserting the privilege] must lodge a formal claim of privilege, after actual personal consideration, specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege.”)(quoting Pontarelli Limousine, Inc. v. City of Chicago, 652 F. Supp. 1428, 1431 (N.D. Ill. 1987)). The Defendants have made it known that the intended scope of the discovery of the MPD’s witnesses is the MPD’s investigation of Robert Wone’s death and, given the prior criminal proceedings, Defendants see no reason why the discovery should be limited, unless the MPD can proffer with some sufficiency that there is a legitimate need for it to rely upon the privilege in this case for some aspect of the investigation. If the MPD is able to articulate a legitimate need for law enforcement privilege in the present case, Defendants will be open to considering the MPD’s position. However, the burden it squarely on the MPD and, absent a more specific articulation, Defendants have no choice but to assume that the MPD’s Motion is intended to do no more than to frustrate the Defendants’ efforts for legitimate discovery and seek application of the privilege in a manner far broader than is necessary or appropriate.




claim, it stops short of articulating its position on those factors, leaving the Parties and the Court with no information as to which concerns are implicated by potential disclosure. A statement of grounds for applying the privilege is essential to balancing the interests involved because certain concerns can be appropriately addressed by agreements, protective orders, or other procedures by which MPD could provide the requested information to Defendants while protecting it from further dissemination. 4 It is significant that the MPD is attempting to assert the law enforcement privilege with respect to former Det. Waid’s deposition, as it suggests that the MPD hopes to use the law enforcement privilege beyond its intended purposes. Detective Waid no longer works for the MPD and, in fact, had already left the MPD prior to the 2010 criminal trial; it is thus eminently reasonable to conclude that he has performed no further investigation of this case since he ceased working for the MPD. Detective Waid testified at the criminal trial regarding his work on the case. No restrictions were placed upon the scope of inquiries made to Detective Waid or any other MPD witnesses. Given that no

limitation on disclosure of information was imposed with respect to Det. Waid during the criminal matter, it is difficult to fathom why the MPD is asserting the law enforcement privilege now.

Defendants have no reason to blindly trust the MPD’s privilege claim without it at least having to follow the prerequisites needed to justify the law enforcement privilege. The MPD’s prior conduct included publicly disseminating damning allegations against the Defendants, including without limitation, claims that Defendants planted a knife at the scene that was not the real knife used to stab Mr. Wone, and that Mr. Wone was injected with paralytic drugs. Both of these allegations were included in the original sworn arrest affidavit prepared by Det. Waid. Tellingly, by the time of the criminal trial, it was revealed that the government did not have sufficient evidence to support these statements contained in the affidavit and, in fact, the government had to amend its indictment to remove various allegations.


Defendants are at a disadvantage in attempting to respond to the MPD’s privilege claim upon the present record. Because the law enforcement privilege is a qualified one, and a judicial determination of its application can only be made upon a weighing of the interests involved in disclosure, more information on MPD’s position is required to enable a meaningful consideration. Here, the MPD has already disclosed voluminous information to Defendants in the course of their criminal prosecution, and based upon the allegations made by the government throughout the criminal matter, there was really nothing from the MPD investigation that should have been withheld from the Defendants at that time. Accordingly, it is not clear how or why MPD can now invoke the privilege. Notwithstanding, Defendants’ interest in the information expected to be used as evidence against them is a strong and legitimate one. Because the law enforcement privilege is qualified, the privilege only applies if the public interest in nondisclosure outweighs the need of a particular litigant for access to the privileged information. In Re Sealed Case, 856 F.2d 268, 272 (D.C. Cir. 1988). The United States Court of Appeals for the District of Columbia has cited a list of factors that are to be considered when balancing these interests, which include: (1) the extent to which the 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; and (10) the importance of the information sought to the seeking party’s case. In Re Sealed Case, 856 F.2d at 271-272 (citing Friedman, 738 F.2d 1342-43). It must be noted that no one would challenge the vital interest in police efforts to discover who killed Robert Wone. However, one cannot ignore that the MPD has already disclosed its efforts, and it must also be recognized that Price, Zaborsky, and Ward have a very strong interest in obtaining discovery from MPD in the civil case. Indeed, Plaintiff’s allegations are mirrored from MPD’s affidavits and allegations against Defendants, and it is expected that Plaintiff will rely on MPD-gathered evidence at trial. Defendants’ deposition requests have been made in good faith, and only the MPD witnesses can provide evidence regarding the MPD’s investigation. 5 Defendants will suffer severe prejudice if they are not permitted to conduct thorough discovery into MPD information. Precedent requires that their interest in discovery be appropriately weighed. Indeed, if, after due consideration, MPD is successful in its efforts to constrain the scope of discovery as to information held by its detectives, Defendants will suffer such prejudice that justice may well require that all MPD witnesses be excluded from giving

The fact that some of the MPD witnesses testified in the criminal trial does not negate the need to depose them in the civil case. The criminal and civil proceedings are different beasts, and certain inquiries that were not explored in the criminal trial may require exploration in the present matter. The Plaintiff’s trial strategy may be different than that which was employed by the government and, likewise, the civil defense strategy may differ in some respects from the criminal defense strategy. The MPD’s Motion suggests that it is seeking to prevent the parties from asking questions that were not asked in the criminal trial, but the law enforcement privilege should not be applied in such a manner. Rather, the focus should be whether the area or topic of inquiry was open for examination during the criminal proceeding, or whether the topic is entirely new and unrelated to the prior criminal action. It is only if certain questions embark on purely new areas of inquiry that the Court should consider whether the law enforcement privilege should apply.


testimony at trial. Given that the Plaintiff’s allegations rely heavily on the MPD’s investigation, the details, manner, and credibility of the MPD’s investigation are of paramount importance. The information Defendants seek goes to the very center of the litigation and issues central to the merits of the case, and Defendants will be severely and irreparably prejudiced if the scope of the MPD depositions are meaningfully restrained. If the MPD is permitted to provide testimony only as to a matter in which it is willing to testify, which will plainly be directed against the Defendants, then the MPD witnesses should not be permitted to take the stand at all. It would be far too prejudicial to the Defendants to permit the jury to hear only a one-sided presentation of the MPD evidence. IV. CONCLUSION. For the foregoing reasons, the Court should deny the Metropolitan Police Department’s Motion to Quash, and grant Defendants such further and additional relief as is deemed appropriate.

Respectfully submitted,

/s/ Craig D. Roswell CRAIG D. ROSWELL (DC Bar # 433406) /s/ Brett A. Buckwalter BRETT A. BUCKWALTER (DC Bar # 478382) Niles Barton & Wilmer LLP 111 South Calvert Street, Suite 1400 Baltimore, Maryland 21202-6185 Telephone: (410) 783-6300 Counsel for Defendant Joseph R. Price


/s/ Robert Spagnoletti ROBERT SPAGNOLETTI (DC Bar # 446462) SCHERTLER & ONORATO LLP 601 Pennsylvania Ave., N.W. North Building, 9th Floor Washington, D.C. 20004 Telephone: (202) 628-4199 Counsel for Defendant Dylan M. Ward /s/ Ralph C. Spooner RALPH C. SPOONER 6 SPOONER & MUCH, P.C. 530 Center St. NE. Suite 722 Salem, OR 97301 Telephone: (503) 378-7777 Counsel for Defendant Dylan M. Ward

/s/ Larissa N. Byers LARISSA N. BYERS (DC Bar # 472431) /s/ Frank F. Daily FRANK F. DAILY 7 /s/ Sean Edwards SEAN EDWARDS 8 The Law Offices of Frank F. Daily, P.A. 11350 McCormick Road Executive Plaza III, Suite 704 Hunt Valley, MD 21031 Telephone: (410) 584-9443 Counsel for Defendant Victor Zaborsky

6 7

Admitted pro hac vice pursuant to Court’s 10/18/10 Order. Admitted pro hac vice pursuant to Court’s 2/26/10 Order. 8 Admitted pro hac vice pursuant to Court’s 8/2/10 Order.



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 Judge Michael L. Rankin Pretrial Conference: September 7, 2011

ORDER UPON CONSIDERATION OF non-party 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 Detective Waid and Law Enforcement, and the Opposition(s) thereto filed, it is on this ___ day of _____________, 2011, by the Superior Court for the District of Columbia, hereby: ORDERED, that the Metropolitan Police Department’s Motion be and is DENIED.


CC: All counsel (via electronic service): Benjamin J. Razi, Esquire Stephen W. Rodger, Esquire Brett C. Reynolds, Esquire Charles Kitcher, Esquire Jason Levine, Esquire Counsel for Plaintiff Patrick M. Regan, Esquire Counsel for Plaintiff William B. Jaffee, Esquire Chief, General Litigation Section III Patricia B. Donkor, Esquire Assistant Attorney General Counsel for Non-Party Metropolitan Police Department David Schertler, Esquire Robert Spagnoletti, Esquire Ralph Spooner, Esquire Counsel for Defendant Dylan M. Ward Larissa N. Byers, Esquire Frank F. Daily, Esquire Sean Edwards, Esquire Counsel for Defendant Victor Zaborsky Brett A. Buckwalter, Esquire Craig D. Roswell, Esquire Counsel for Defendant Joseph Price


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