Dog Day Afternoon

Breaking: Judge Denies Defendants’ Motion to Seal Filings

Aren’t the Dog Days supposed to be slow news days as well?  Apparently not.

"Who's a Good Boy?"

Yesterday, Judge Brook Hedge lifted the seal on the motions regarding the plaintiff’s request to pull the defendants’ Verizon phone and email records.

The defense argued to keep them under a tight lid on privacy grounds but she ruled against.

Hedge cited emails between Price and Ward that were “already in the public domain,” and “…there is a general right of the public to inspect and copy public records.”  Several of these emails had been admitted as evidence at the criminal trial but no one has had a look at them.  Hedge also found that Price’s alt.com profile page was a “published advertisement.”

Unsealed are the four docs that started this skirmish on August 5.  And as seen in the criminal motions, the substance is in the attachments…viewable after the jump.

In the plaintiff’s “Points and Authorities in Support”, a series of July 2006 emails between Price and Ward tell of a relationship coming apart: Ward drawing away, leaving Price “scared and upset.”

These emails, according to the plaintiffs, “may provide evidence of the Defendants’ activities and state of mind shortly before and after Mr. Wone’s murder.”

And speaking of attachments, in one email exchange, Price floats the idea of reaching out for a third via alt.com, when Zaborsky will be out of town.

Despite all of this wrangling, in yet another an odd twist, the plaintiffs have withdrawn their motion on the Verizon records so all of this is basically moot:

[Sealed August 16, 2010 and Unsealed by August 24, 2010 Order] Plaintiffs Notice of Withdrawal without Prejudice of Motion for Issuance of a Commission to Subpoena Verizon Communications, Inc. Filed Attorney: RAZI, Mr BENJAMIN J (475946) ESTATE OF ROBERT E WONE (PLAINTIFF);

What’s up with that?

Three of the four newly unsealed documents follow along with Judge Hedge’s order.

The remaining 30 page document, the plaintiff’s Points and Authorities in Support of their Motion for Issuance – the one with the defendants’ emails – will be published tomorrow.  Until then, enjoy the Dog Day Document Dump.

Lastly, for those keeping score at home, Judge Hedge pushed the time of the September 10 status hearing back from 9:45 to 10:30am.

-posted by Craig

Plaintiff’s Motion for Issuance

Defendant’s Opposition to Motion of Issuance

Defendants’ Points and Authorities in Support of Opposition

Hedge’s Order

62 comments for “Dog Day Afternoon

  1. CDinDC (Boycott BP)
    08/25/2010 at 11:11 AM

    so, will the telephone records be forthcoming on WMRW?

    • chilaw79
      08/25/2010 at 1:11 PM

      Any emails or telephone records obtained by plaintiff’s counsel in discovery will come to light only if discovery motions are litigated or plaintiff’s counsel attaches them to other motions. Until trial, it is unlikely the records will be produced in full detail, although plaintiff’s counsel (as well as defendant’s counsel) is likely to have them. Given the tenor of what has transpired to date, discovery motions are likely to be in abundance.

      It seems very ironic to me that Joe Price, an advocate for equality, now seeks to characterize his sexuality as something that should be hidden from public view. There is nothing illegal or immoral about voluntary and consensual BDSM. In fact, I would argue that when one uses law firm email to discuss exploring a sexual relationship or advertises on a website for a BDSM partner, there is not much argument for privacy.

      Judge Hedge ruled correctly in my view that the email documents attached to the plaintiff’s motion are not shielded by privacy concerns.

      • Bruce
        08/25/2010 at 2:35 PM

        Chilaw:

        I agree generally with you that the court ruled correctly as to the two items attached to the previous motion as being “public records.”

        However, I disagree with your assertion of irony.

        I doubt that the motion to seal records was done to hide the fact of Joe’s “sexuality.” Everybody on the pea-picking earth knows he’s gay and he has publicly said so.

        The defendants’ opposition to motion of issuance raises issues of privilege, as well as privacy. Lucky for the judge that she didn’t have to decide those issues of privilege at this point, since the plaintiff’s counsel apparently withdrew the Motion of Issuance, making it moot.

        Also, there is no requirement that something be “illegal” or “immoral” as a basis to seal documents or oppose a motion for issuance.

        The big question, at least for me, is why did plaintiff’s counsel withdraw the motion of issuance?????

        I did read the defendants’ opposibion, and it seemed that they cited a number of decisions finding that such documentation sought by plaintiffs would not be allowable by a civil subpoena according to a specific federal statute. Have no idea if those are good cases, on point, or subject to differentiation.

        Is it possible that plaintiff’s counsel determined that they would lose on the issue of that prohibitive federal statute cited by the defendants? Or that they didn’t want to push on it to create an appealable issue on this point at this early stage of the litigation?

        • chilaw79
          08/25/2010 at 3:03 PM

          I meant ironic in the sense that Joe projected a public image (as in the William and Mary video) that differed with his private image. I think if you want to keep your private life private you should not send emails about your private life from work.

          I think the plaintiff is going to try to get the emails directly from the defendants (under Rule 34), rather than go to Verizon (under Rules 28 and 45) and deal with the additional issues. I think this is what Judge Hedge was driving at earlier, as it facilitates the process of the defendants raising and resolving issues of relevance, privilege, and other matters that are more difficult when third parties are involved.

          On the other hand, I doubt that Joe (in particular) now has access to his Arent Fox email, although he may have preserved relevant materials. I see no reason why the plaintiff should not try to get the materials from the defendants first.

          On the federal statute, it is (at first blush) pretty restrictive. I have not read the cited cases. I think the vast majority of cases involve situations where the parties have access to their own email accounts and can get copies of emails.

          • Deb
            08/25/2010 at 7:38 PM

            Also, if the defendants produce the requested documents, they do not necessarily become part of the public record.

        • Bea
          08/25/2010 at 8:37 PM

          Bruce, the Plaintiff’s withdrawal was without prejudice so I think it’s just practical – they’ll see if they’re getting everything, and, if so that’s sufficient. If not, they’ll be sure to use what they do get to justify their next Motion – I agree with Chilaw.

          What I find most interesting is the Judge going the extra mile on ‘un-sealing’ the material. Frankly, I think the Judge may have looked at the Withdrawal and let the whole thing sit. This may well be a good example of how she’s likely to see things as to whether or not to make things public; many judges (I think) go with putting material under seal if there’s even a remotely reasonable argument made as typically the way to get slapped on appeal is going from those spending the money TO appeal – generally not worth the effort to overturn a judge who wants to protect certain “private” matters.

          • Bruce
            08/26/2010 at 3:31 PM

            Bea:

            I think you are right on all points.

            To me, this judge is indicating that if you are suggesting to her that something should be kept from the public, you will have a clear burden to show her exactly why the item should not be disclosed to the public, and she is not going to favor non-disclosure from the onset.

    • Craig
      08/25/2010 at 1:30 PM

      CD: There’s no way to tell from one day to the next what will come in, but we think we’ll see more records at some point.

      C79: As we’ll see tomorrow, the emails Price sent to Ward came from his A-Fox account. And we know Price managed other personal business through that account as well, so is there any reason to think the plaintiffs WON’T try and get a look-see at what else was on Price’s work email?

      And how about a big round of applause for Mokhiber v. Davis.

      • denton
        08/25/2010 at 9:09 PM

        Craig – Very interesting stuff! It took 14 months to decide? Wow! I hope the Eds don’t have to go through all that.

        • denton
          08/25/2010 at 9:19 PM

          …I mean I hope it doesn’t happen here.

      • Cat from Cleveland
        08/25/2010 at 9:21 PM

        Most of Joe’s emails to and from his work email are privileged. That may be why he used it – it will be extremely difficult, if not impossible, for the Plaintiff to get access to emails from that account. Her lawyers can ask for all non-privileged emails in discovery, but she’ll only get what Joe/his lawyers/Arent Fox decides to produce. If they want more access, they can ask the court to appoint a special master (who would be an agent of the court, not either party)to perform key word searches of Joe’s emails and to produce only nonn-privileged emails. This is extremely expensive, time-consuming, and not guaranteed to produce everything, even assuming the Court grants the request. The bottom line is this — the Court is likely to error on the side of protecting privileged communications, rather than on the side of making sure Plaintiff gets everything.

        • 08/25/2010 at 9:58 PM

          I hereby volunteer — strictly pro bono of course — to be the special master, poring through all the emails as an agent of the court. I’m happy to step forward, would do it strictly pro bono and as a true act of patriotism and/or fiscal efficiency (aka economy). How do I get myself qualified??!!

          If not (why do I suspect you’ll say “nope”?), here’s another thought — Joe’s former clients at Arent Fox would demand to see the emails, for the purpose of seeing the date and time stamps. Don’t they have the right to determine if they had been billed for his time at the very times he was emailing about non-AF matters (e.g., trolling for sex and re the coming video business). The emails would have to be matched to AF’s billing records for Joe. Hey, I’d do THAT too!! No charge. I’ll even pay my expenses and will bring my own lunch.

          • Cat from Cleveland
            08/25/2010 at 10:17 PM

            Lol!

        • chilaw79
          08/25/2010 at 11:09 PM

          Not every communication on a law firm’s email account is privileged. Joe Price and/or Arent Fox would be in a good position to assess whether the communication is to/from a client. Emails by and between Joe Price and Dylan are not within the realm of privilege. Emails between Joe Price and Victor are arguably privileged (not by reason of attorney-client privilege, but domestic partner privilege).

          Emails between Joe and other individuals, including Sarah, Tom and John, and other individuals who are not clients of Arent Fox are not covered by privilege. Clients face this all the time and it is not inordinately expensive. The request could be restricted to email between certain individuals and is restricted by time to a two-month period. For most lawyers, this would involve hundreds of emails, but the clients can be readily identified from firm billing records. I don’t think this is as all encompassing as you believe as long as the parties approach it in good faith.

        • Bea
          08/26/2010 at 4:06 AM

          Cat, I disagree that ‘most’ of Joe’s emails from his work account are privileged. Even with clients, the subject matter has to be in the nature of seeking legal ADVICE.

          Arent will be very concerned not to disclose genuine attorney-client privileged emails, but as for Joe and Sparkly Cat and Alt Dot Com boys, not so much. I don’t think Arent is happy with Joe these days. In this instance, the rule of ‘any publicity is good publicity’ doesn’t really apply.

          I think Plaintiff could make a very good argument that emails between Joe and VICTOR are NOT protected by the spousal privilege. One law review article proposes that any web-based emails (even private services such as Yahoo) should not be protected under “spousal privilege” because the emails are actually stored on servers and the ISPs have access. I don’t think Plaintiff would have to go out on that shaky limb to win – in THIS case, Joe used Arent email. In at least one case, the spousal privilege was disallowed because the defendant used his work email account and that account was governed by policies stating that the employer had full ability to monitor/review emails, and the IT department had access even if they didn’t read the emails.

          Here, Joe (as partner) couldn’t argue ignorance of the policy or law (as has been argued in other cases). The law professor argued that an email is akin to sending a postcard – no privilege because it COULD be read by others (for non-lawyer, the spousal privilege is destroyed if the communication is made in the presence of a third party, even an eavesdropper).

          Some cases discuss whether the emails were actually read by others (thus destroying the privilege) – here, the Arent partners certainly read the emails before they canned Joe (not to mention the field day the IT group likely among themselves if not with others – that must’ve been the subject at at least one happy hour after work!).

          In case Covington hasn’t thought this one through (I suspect they have) I think they should – they might establish when Victor first learned of the Alt Dot Com ad, whether he found out about any Victor-is-away activities and his response, whether Joe had lied about his escapades, etc. AND if Joe wrongly assumed his communications were privileged, he might have said some very damaging things to Victor given his propensity for grandiosity (and his inability to keep his mouth shut).

          Law article: “21st Century Pillow-Talk: Applicability of the Marital Communications Privilege to Electronic Mail” http://law.bepress.com/expresso/eps/1747/

          Caselaw:

          U.S. v. Etkin, 2008 WL 482281 (2008)
          The email ‘did not constitute confidential communication because Defendant sent the email from his work computer, which was owned by the NYSP and which explicitly warned Defendant that his uses of the computer were subject to monitoring by the NYSP.’

          The court noted that the defendant’s incriminating email to his wife email was accessible to at least ten IT staff members through various means.

          U.S. v. Nicholas, 594 F. Supp. 2d 1116 (C.D. Cal. 2008)
          Incriminating email was discovered by an IT staff member engaged in authorized maintenance; employer was looking into the behavior of employee and emails were compiled by IT staff.

        • Bruce
          08/26/2010 at 3:39 PM

          Hey Cat:

          These e-mail records, in my jurisdiction, would likely be reviewed by the judge herself (what we call here an “in camera inspection,”) and decide what goes in and what goes out.

          Unless the records are way too voluminous, I would be surprised that the judge would appoint someone else to look into them, like a Special Master, even if it is just to narrow down the e-mails by key word, etc., and even if she has a right to accept or reject the Special Master’s findings.

          My bet is that she wants total control of this case in her hands, and an “in camera inspection” is the way to go in that scenario.

          • Cat in Cleveland
            08/26/2010 at 4:19 PM

            Bruce,

            I agree that an in camera inspection is the proper mechanism. If I were asking to have 2 months worth of attorney emails reviewed (likely thousands), I’d want to present the judge with an option other than reading them herself. . . Not that I’m suggesting that any judge would hesitate to spend as much time as is necessary performing the duties of his/her position, of course. . .

      • susan
        08/25/2010 at 10:11 PM

        A round of applause for Russell Mokhiber!

  2. chilaw79
    08/25/2010 at 12:05 PM

    Some of the phone records constituted evidence in the criminal trial and were highlighted in some of the Government’s “state of mind” submissions in the criminal case(notably the cards (“Sparkly Cat”) and e-mails between Joe and Dylan regarding the introduction of a “third” as a means of rekindling their waning relationship (while Victor was away on business).

    It is not clear whether other e-mails were introduced or made available as Brady material to the defendants. Also, Joe Price gave Kathy Wone some emails.

    When Joe sends his emails through the Arent Fox system and does not mark them as personal or confidential (despite their content), I am not sure how he makes the privacy argument. I doubt that Joe now has access to his Arent Fox emails, so it is not clear to me what he could produce (or not produce) in discovery. Also, it is not clear to me whether telephone records are in the name of Arent Fox (or other employers for Victor or Dylan) or the individual defendants. If I were counsel for Arent Fox, I would rather have my counsel (rather than Joe’s) overseeing production of Arent Fox documents.

    The more I think about it, the more cumbersome things seem.

    • Cat from Cleveland
      08/25/2010 at 9:33 PM

      Most lawyers have a footer that automatically appears on all of their emails that states that the email is confidential. I’d be surprised if Joe didn’t have that footer.

      In any event, its a total red herring. A communication between a lawyer and any person, which is for the purpose of obtaining legal advice, is privileged whether marked as such or not.

      The privilege is extremely broad. For example, I’m at a dinner party hosted by my best friend, and a stranger who knows I’m a lawyer comes over to me and says, “what’s the statute of limitation on theft? Last time I was here I stole some jewelry and I want to know if I’m off the hook now?” I have to take that information with me to my grave, because its privileged. I don’t have to answer (I don’t have to give advice) but the information was in an effort to obtain advice and therefore, its privileged.

      This is why it will be hard for the plaintiff to get Joe’s emails – without reading each one, and understanding its context, it will be difficult to separate the privileged communications from the non-privileged ones. The Court will protect the privilege, above all else, because its not Joe’s privilege, it belongs to the client.

      • chilaw79
        08/25/2010 at 11:39 PM

        While I am not establishing a lawyer-client relationship with you, I personally would not give legal advice at a dinner party. I do not know what the Ohio Bar or its courts would say on this issue, although I do know that some states (e.g., Minnesota) would say a dinner party conversation might be enough to enable the “client” to bring a malpractice action. I tell people who want to talk about legal issues at dinner parties to call me at my office if they want advice and start talking football.

        Depending on the state, a dinner party conversation may or may not create an attorney client relationship. Of course, the privilege would not apply if a third party were present during your conversation.

        The District of Columbia is not quite as strict as some other jurisdictions on the issue of when an attorney client relationship is established. However, it seems unlikely that Joe was writing love letters to Dylan in his role as lawyer. He was not advising Dylan about a legal issue; he was attempting to rekindle a sexual relationship.

        At any rate, not every conversation or dialogue between a lawyer and someone else is privileged. Joe cannot claim the privilege as to all of his communications with anyone and should not be able to do so. On the other hand, to the extent he was consulting with his own counsel or communicating with clients on legal matters, the privilege should apply (unless other limitations on the privilege apply–notably communication in the presence of others and the future crime exception).

        • chilaw79
          08/25/2010 at 11:59 PM

          I note that Arent Fox has specific disclosures on its website regarding when an attorney-client relationship is established. Under these policies, it is difficult to create an implied attorney-client relationship. The website also discloses that email communications through the website may not be secure.

          Many large firms take similar actions to avoid inadvertent representation. It is not clear to me in your “dinner party” example whether the DC Bar or a DC court would find an attorney client relationship if you told the individual, “I’m sorry, but you should not rely on anything I might say as legal advice since we have no attorney-client relationship.” Individuals (and companies) should not be able to establish attorney-client relationships unless it can be shown the individual or company had a “reasonable basis” to conclude you were providing advice as their lawyer.

      • Emily
        08/26/2010 at 9:55 AM

        Cat said:
        “For example, I’m at a dinner party hosted by my best friend, and a stranger who knows I’m a lawyer comes over to me and says, “what’s the statute of limitation on theft? Last time I was here I stole some jewelry and I want to know if I’m off the hook now?” I have to take that information with me to my grave, because its privileged.”

        Can you please explain to me how it is that a stranger who randomly approaches you and makes admissions and has not engaged you for professional purposes gets privilege extended to them? Surely privilege only applies when there is an agreed professional relationship between 2 people. A priest with an obvious collar (priest collar, not cop collar) might have to take on all declared supplicants but surely a lawyer is not obliged to take on as a client all bums that fall over them in the street.

      • AnnaZed
        08/26/2010 at 11:48 AM

        Are you sure about that cocktail party anecdote? I always thought that some sort of transaction had to take place, hence the amusing business in novels where the lawyer character extracts a fee of one dollar from the character in crisis before listening to anything that might be incriminating. My references are purely literary, so I don’t honestly know.

        Anyway, as you point out any emails from Joe to clients or between him and other lawyers would be privileged, but I don’t think that means that any email that he wrote from that address (regardless of electronic signature) to anyone (say Robert for example or Sparkly cat) would be.

        • chilaw79
          08/26/2010 at 12:32 PM

          I would say it may depend on the location of the cocktail party. There is some DC law that suggests that even an in-office consultation of a preliminary nature is not sufficient to establish an attorney-client relationship for malpractice purposes.

          However, virtually every legal ethics course on lawyer-client privilege posits the cocktail party scenario. The issue is whether the parties intended to create a lawyer-client relationship.

          The lawyer-client privilege should exist regardless of whether a fee is paid. However, the transfer of $1 and other good and sufficient consideration, often is used to symbolize the formation of a contract (including formation of the lawyer-client relationship). Perry Mason was very big on this.

          • Cat in Cleveland
            08/26/2010 at 1:56 PM

            Chilaw, I agree.

            Malpractice and ethics are cut from a different cloth. To sue a lawyer for malpractice, you must establish the existance of an attorney/client relationship, which necessarily implies some consent to the representation by the lawyer.

            The privilege, however, is both evidentiary and a matter of legal ethics. It attaches not only to communications with a client, but also to those with a prosective client. The lawyer is free to tell the prospective client that she will not represent him, but she many not reveal any confidences the prospective client shared. Generally: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client (6) are at his instance permanently protected (7) from disclosure by himself or the legal adviser, (8) unless the protection is waived. I did not bother to insert the citations here, but if anyone is looking for cites, let me know.

            Applying this analysis to the cocktail party scenario, if the thief pulls the lawyer aside and asks the question quietly in private, the lawyer can tell the thief to go to hell (no attorney client relationship is formed, the lawyer is not under a duty to answer the question, and the thief cannot sue the lawyer for breach of the standard of care) but the lawyer cannot, ever, disclose what the thief said. On the other hand, if the thief asks the quetion in the presence of third parties, the question was arguably not asked in confidence, and no privilege will attach.

            • KiKi
              08/26/2010 at 3:06 PM

              I agree completely Cat. I think that the privilege (merely from an evidentiary stand point) would apply whenever Joe believed he was giving advice of a legal nature or the person who e-mailed him was e-mailing Joe the lawyer. I don’t think what was said has to be an actual solicitation of legal advice. As a hypo lets say Joe e-mails his buddy the employment lawyer a naked picture of himself via his work e-mail. Joe’s buddy writes back “dude , are you crazy? AF monitors e-mail, I wouldn’t send that picture using your work e-mail, you could get fired.” I think that the communication between Joe and his friend would be privileged (for evidentiary purposes.) Or I would at least make that argument.

              This may be pretty clear from the comments but when a question is asked about a legal principle such as hearsay, confrontation, privilege, estoppel, etc. these are all legal concepts and as lawyers we have learned about them in law school as theory and have seen them arise in our practices, as specific fact patterns. As such, we will often disagree about what the law “is” or what will “happen.” This is just how the law works. I think that most of the lawyers would agree that when we give our opinions on these “legal concepts” the words “I would argue” could be written in front of everything we say. I just don’t want people to read these long threads and think, wow I am even more confused – which one of these fools is right? Often everyone is. And that is why law is, more than anything a game. (please note I am not saying this case is a game). The law is about making arguments, parsing details into a position that is best for you at the time.

              • chilaw79
                08/26/2010 at 3:21 PM

                Yes, KiKi, but what if the employment lawyer writes back, “You are so hot. Let’s have some drinks and put on the Velcro straps.”

                When Joe sends out the nude photos, he is not looking for legal advice from the employment lawyer.

                Argue what you will, but sending out the photos (even from his Arent Fox email account) is not privileged.

                • KiKi
                  08/26/2010 at 3:36 PM

                  Ok Let’s take your scenario and add that Joe later hires said employment lawyer. Are you saying that you don’t think that Joe sending the picture would be A/C privilege? I think it would absolutely fall under privilege whether he intended to solicit advice at that point is irrelevant, advice was given, the A/C relationship began.

                  But I would agree that in your hypo where Joe sends nude pic, lawyer requests velcro, no A/c privilege.

                  • chilaw79
                    08/26/2010 at 3:50 PM

                    I just don’t see an intent to seek legal services in a nude photo (absent something else).

                    Some of my lawyer friends send me cartoons or jokes. It doesn’t mean they are seeking my legal advice.

                    • KiKi
                      08/26/2010 at 4:01 PM

                      right but what happens when you give advice (unsolicited) based on that cartoon or photo.My position is you then make that cartoon part of the privilege.

                  • Cat in Cleveland
                    08/26/2010 at 4:02 PM

                    Kiki- good point re “I would argue.” Seriously, two lawyers, three opinions, and probably all correct in one court or another.

                    Chilaw – exactly! That’s why the context of each communicationis so important to determine whether it is subject to the privilege. Its not enought to know whether the other party to the email was a known client or not.

                    • chilaw79
                      08/26/2010 at 4:03 PM

                      Take a look at the disclaimer on the Arent Fox website for some context.

            • susan
              08/26/2010 at 8:47 PM

              So, if JP walked up to you, Kiki or Chi at a party or sent an email to you and said “I murdered R. Wone and here’s how I did it and why and let me tell you where the evidence is to convict me and do you think I can win this civil case with the attys I’ve hired” that is privileged info. and you are foresworn by law to take that with you to your hereafter?

              • susan
                08/26/2010 at 8:48 PM

                Sent to Cat but anyone’s reply is welcome.

              • chilaw79
                08/26/2010 at 9:17 PM

                The answer would depend on whether (1) Joe knew I was a lawyer, and (2) intended to seek my legal advice (as opposed to torturing me mentally).

                The next nice question would be what my obligations were if I later learned that Joe was not saying the same thing in a deposition or trial testimony. However, if he handed me the murder weapon, I would be obligated to turn it over to the authorities.

                I hope I could stop him before he could blurt it out.

              • Cat from Cleveland
                08/26/2010 at 9:34 PM

                Yeah, this is one of those questions. . . I could launch into a dissertation about the sound public policies behind the attorney client privilege, but at the end of the day, it sounds like a bunch of nonsense when it means a confessed murderer walks free.

                Yes, I’d take that information to the grave.

                I get emails from strangers all the time with a factual narrative and a question about the law. Sometimes I respond, sometimes I don’t. But it is always my understanding that the contents of those emails are privileged, and that I’d risk my ticket if I disclosed the confidences contained in them.

                There are lots of stories of lawyers going to extremes to avoid the consequences of the privilege when they learn something they would rather not know (such as, for example, where the body is). But when we take our oath, we all know the responsibilities we are assuming. And we understand the import of the privilege.

                And sometimes it sucks.

                • susan
                  08/26/2010 at 10:15 PM

                  I’d break the jurisdictional man-made subjective law, myself. These laws are man-made, change, vary from region to region, nation to nation, etc. And they evolve. I only wish I were an atty and someone gave me the facts of their crimes. I couldn’t wait to turn them in.

    • Cat in Cleveland
      08/26/2010 at 4:26 PM

      I’d just like to point out that the “Sparkly Cat” card was unknown when I chose my pseudonym. Every time its referenced, I cringe a little. . .

      • chilaw79
        08/26/2010 at 4:42 PM

        I think that all went by the wayside when you chose your avatar.

        • Cat in Cleveland
          08/26/2010 at 5:04 PM

          Don’t know which way that one goes, but I’ll share that my avatar was drawn with a tiny finger on my iphone by the most special 6 year old who ever lived. . . makes me smile every time I look at it.

      • Bruce
        08/26/2010 at 6:02 PM

        That’s ok, Cat:

        Every time someone mentions that Shakespeare quote: “First, Let’s Kill All the Lawyers!” I internally bleed a little.

        • 08/26/2010 at 7:31 PM

          Bleed a little more, Bruce, but have some towels on hand as the 911 operator advised. Here in DC, another attorney employed by another premier law firm (Arnold and Porter) has been charged with taking and distributing pornographic photos of a 15 yr old runaway. Also assumed sexual assault, but no charges on that. Her mother reported to the police that her daughter was a prostitute. The Virginia police checked the daughter’s online computer account, and voila.

          I wonder if the photos were on his AP computer; he was a family man so maybe could not use his home computer for this purpose. This attorney, age 41, in securities out of AP’s Tyson Corner (VA) office, was an associate. I notice that his name has been wiped off AP’s personnel list. Quicker than Arent Fox.

          http://www.washingtonpost.com/wp-dyn/content/article/2010/08/24/AR2010082405870.html

  3. Rapt in MD
    08/25/2010 at 12:19 PM

    {{{Happy dance at my desk}}}

  4. carolina
    08/25/2010 at 6:15 PM

    When one posts a personal ad (with photos!)online or elsewhere, surely there is no reasonable expectation of privacy.

    Just because no one replies doesn’t mean it’s private, Joe.

    • Deb
      08/25/2010 at 7:59 PM

      A couple of things I’ve always found interesting about that ad that Joe places on alt.com are:

      1) He describes his relationship as “sub and dom” . . . in that order. I would imagine the true dom usually prefers top billing.

      2) Further on, he describes his personality as “assertive”.

      Yet he is the sub?

      To me, this lends further credence to my thought that Joe may well be uncomfortable with his own sexuality.

      • denton
        08/25/2010 at 9:30 PM

        Deb – Joe was a very confused person, ya know!

      • Cat from Cleveland
        08/25/2010 at 9:46 PM

        I have no personal knowledge of this, but I’m told there is an expression. . . something like topping from the bottom or some such thing? Surely someone here with a knowledge of BDSM is better able to address this? The point is that the sub is the one with the power in the relationship. In that regard, it makes perfect sense that Joe is the sub.

        • Bill 2
          08/25/2010 at 10:07 PM

          I believe the term is “power bottom.” Thus Joe could be known as a power bottom.

        • AnnaZed
          08/26/2010 at 12:02 PM

          Well, you can do a search on it here, but that’s the gist of it. It’s not uncommon, it’s not that strange in a BDSM relationship and I wouldn’t call it an indicator of sexual uncertainty. I am hardly a Joe apologist, but this stuff means nothing in BDSM terms. In fact, and we talked about this a bit when turning our sights on Victor, a case can abundantly be made that practitioners of BDSM are manifestly sexually “sane” by virtue of acting on their impulses in a safe and controlled environment while others who repress these impulses (thought to exist in all person regardless of orientation) are the unhealthy ones. Not a theory that I totally subscribe to, but it has its merits.

    • Bea
      08/25/2010 at 8:29 PM

      Carolina – got a gut laugh out of your comment!

  5. Deb
    08/25/2010 at 7:10 PM

    Thank you for this type of a dog-day. My air conditioner caught on fire, so now I will have some reading to distract me!

  6. susan
    08/26/2010 at 12:06 AM

    http://legaltimes.typepad.com/blt/2010/08/dc-judge-orders-court-papers-in-wone-civil-case-unsealed.html

    Didn’t see it mentioned on this page but this Legal Times report mentions “spousal privilege” cited by the defense attys for protecting Price and Zaborsky’s correspondence. Once again, DW left out in the cold. Unless VZ is away…….

    • chilaw79
      08/26/2010 at 9:17 AM

      I know it is splitting hairs, but Joe Price and Victor Zaborsky would have been subject to domestic partner privilege, not spousal privilege. DC has recognized domestic partners for several years, but did not permit same sex marriage until much more recently.

      The next issue, of course, is whether such communications routinely were disclosed to third parties (either because employer email accounts were used or because the communications were shared with others).

      Perhaps today’s movie feature could be the Seven Year Itch.

      • denton
        08/26/2010 at 10:10 AM

        C79 – Lol. Cortisone…anyone?

        • chilaw79
          08/26/2010 at 10:41 AM

          I am not sure Cortisone is useful on that type of itch.

      • AnnaZed
        08/26/2010 at 12:05 PM

        Well, I certainly don’t know the legal ramifications of this but as the sweetheart of an IT guy I can tell you in no uncertain terms that there is nothing (nothing) that you can email, post, write in draft or otherwise type that is inaccessible to the firms IT department (regardless of if you think that you deleted it or not), absolutely nothing.

        • chilaw79
          08/26/2010 at 12:16 PM

          The IT department can track every key stroke and the company or firm can use the information when they deem it appropriate.

          There are no secrets which is why I try to give any legal advice that may be controversial by telephone or, better yet, in person.

    • Bea
      08/26/2010 at 2:35 PM

      Made a comment last night as to why I don’t think Joe-and-Victor emails are covered by domestic partner/spousal privilege. Not particularly interesting reading but worth noting that that may well be another avenue for info gathering.

      • chilaw79
        08/26/2010 at 3:07 PM

        Thought it was interesting (and may well be correct).

        Surprisingly, DC law (despite its plethora of lawyers) can remain undeveloped on issues like these. I am not sure there is a single reported case on domestic partner privilege. Email is so 21st century that DC may not have caught up. But, DC is far ahead of Virginia, where they still cite Blackstone’s Commmentaries.

        • Clio
          08/26/2010 at 11:01 PM

          What’s so wrong with Blackstone’s commentaries, even if they did lead Lynn to give us all her “cold comfort”.

          Email is the post post-modern equivalent of sending a post card: realize that, in the 1890s, post card correspondents routinely boasted of things that we might shudder at — participation in lynchings, sexual harassment, etc.

          Emailers today should expect the same judgments from posterity; it is just that those judgments are happening more quickly than ever before!

  7. Rick
    08/26/2010 at 9:14 AM

    WOW…interesting reading and great commentaries from the gallery!

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