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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

Civil Division

Estate of ROBERT E. WONE, by


KATHERINE E. WONE,

Plaintiff, Civil Action No. 0008315-08


The Honorable Michael L. Rankin
v. Next Event: September 7, 2011
Pre-Trial Conference
JOSEPH R. PRICE,

VICTOR ZABORSKY,

and

DYLAN WARD,

Defendants

* * * * * * * * * * * * *

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), Negligence-

Failure 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

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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.

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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. Defendants were subsequently

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
2
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.
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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).

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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

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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

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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.

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III. EVEN IF A PROPER WEIGHING OF THE INTERESTS COULD BE DONE ON THE
CURRENT RECORD, DEFENDANTS’ STRONG INTEREST IN THE INFORMATION
MUST BE GIVEN DUE CONSIDERATION.

While MPD sets forth the factors to be considered in a Court’s review of such a

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.

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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.

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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

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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

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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.

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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
cdroswell@nilesbarton.com
babuckwalter@nilesbarton.com
Counsel for Defendant Joseph R. Price

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/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
rspagnoletti@schertlerlaw.com
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
rspooner@smapc.com
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
lbyers@frankdailylaw.com
info@frankdailylaw.com
sedwards@frankdailylaw.com
Counsel for Defendant Victor Zaborsky

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Admitted pro hac vice pursuant to Court’s 10/18/10 Order.
7
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.

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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION

Estate of ROBERT E. WONE, by


KATHERINE E. WONE,
as Personal Representative,

Plaintiff, Civil Action No. 008315-08

v. Judge Michael L. Rankin

JOSEPH R. PRICE, Pretrial Conference: September 7, 2011


VICTOR J. ZABORSKY, and
DYLAN M. WARD,

Defendants.

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.

THE HONORABLE MICHAEL L. RANKIN


CC: All counsel (via electronic service):

Benjamin J. Razi, Esquire David Schertler, Esquire


Stephen W. Rodger, Esquire Robert Spagnoletti, Esquire
Brett C. Reynolds, Esquire Ralph Spooner, Esquire
Charles Kitcher, Esquire Counsel for Defendant Dylan M. Ward
Jason Levine, Esquire
Counsel for Plaintiff Larissa N. Byers, Esquire
Frank F. Daily, Esquire
Patrick M. Regan, Esquire Sean Edwards, Esquire
Counsel for Plaintiff Counsel for Defendant Victor Zaborsky

William B. Jaffee, Esquire Brett A. Buckwalter, Esquire


Chief, General Litigation Section III Craig D. Roswell, Esquire
Patricia B. Donkor, Esquire Counsel for Defendant Joseph Price
Assistant Attorney General
Counsel for Non-Party Metropolitan
Police Department