Hounding Joe Price for his Arent Fox Emails
Throughout Joe Price’s tenure at Arent Fox, the firm maintained a strict and unambiguous policy regarding email and voicemail which was revised several times. Namely: they are the property of the firm regardless of subject matter, client business or personal – and there are no expectations of sender privacy.
Like many Washingtonians, Price was prolific emailer: all day long, day in and day out, rapid fire in the months following Robert’s murder. The plaintiffs want those emails and filed a Motion to Compel Production of Third-Party Documents, late last week to get them. Price claims they’re privileged, spousal, attorney work product, joint defense or otherwise. Judge Brook Hedge will rule.
AF was subpoenaed in early 2009 and started producing logs of Price’s emails before a stay was granted in the civil case (pending a verdict in the criminal). Wasting no time, one day after the June 29 acquittal, Covington was back at it, on the phones and firing off memos to Price’s counsel at Niles, Barton and Wilmer for revised logs and clarifications. AF amended and produced their logs two weeks later on July 15.
The logs detailed time, recipients and in some cases the subject of the emails – for example, newspaper and TV coverage of the murder, “hate-mail” received, “emotional toll,” “VZ Request For Counseling,” and “Passport confiscation.” One log entry is entitled “Press Conference.” Price sent that email one year after the murder; the same day Robert’s widow, friends and the future Attorney General spoke to the press.
A catalog of the hundred and fifty pages and the eighteen month chase follows.
The initial January 2009 subpoena to AF requested a boatload:
1. All documents relating to Robert Wone, including, without limitation, his murder and/or the investigation into his murder.
2. All documents produced by or on behalf of Arent Fox LLP to the US Attorney’s Office for DC and/or the DC Metropolitan Police Department in connection with the investigation into Robert Wone’s murder.
3. All communications, including, without limitation, electronic mail communications, between Joseph Price and Dylan Ward, whether or not such communications also included third parties.
4. All communications, including, without limitation, electronic mail communications, during 2006 between Joseph Price and Michael Price, whether or not such communications also included third parties.
5. All photographs, images, videos, or recordings that (1) are stored on any computers or databases assigned to or used by Joseph Price; and, (2) depict violence or contain sexual content. (Emphasis ours).
Racking up some non-billable hours, memos from AF partners D. Jacques Smith and Randall Brater accompany the logs. Price kept separate Microsoft Outlook folders: Rob, Robert, Wone, DylanDylan Ward, Dylan Ward and Savormassage01. [Ed note: comps to the buffet for anyone who deciphers that one.]
The traffic went to a limited number of people, directly or cc’d; all familiar names: Price and Zaborsky’s initial counsel, Kathleen Voelker, Ward counsel David Schertler, Robert Spagnoletti and Veronica Jennings, Zaborsky counsel Tom Connolly and Amy Richardson, and surfacing late, after Ward’s arrest, Price’s man, Bernie Grimm. Price’s co-defendants were often included as well. [Ed note:additional comps to the showroom if anyone can tell us if Voelker was at AF at the time of the murder].
Covington argues against Price’s privilege claims in their “Points and Authorities in Support”:
I. Price’s Privilege Claims Are Without Merit Because He Had No Reasonable Expectation Of Privacy In Non-Work-Related Emails Sent Through His Employer’s Email Account.
II: The Price-Zaborsky Emails Must Be Produced Because The Spousal testimony Privilege Applies To Testimony, Not Pre-Existing Documents.
III: Defendant Price Has Not Met His Burden Of Proving That The Joint Defense Privilege Applies To His Email Communications With His Co-Defendants.
Also attached to the motion is an affidavit in support by Covington’s Ben Razi, with a subpoena time line and a listing of the exhibits. There’s a bunch of them, so they’re embedded below in groups:
1.) The motion to compel, supporting memos, Razi affidavit 2.) Exhibits 1-10: the subpoenas to A-F; firm’s email policies; AF, Covington memos. 3.) Exhibits 11: The privilege logs A-F produced from Price’s ‘Wone’ email folders. 4.) Exhibit 12: The logs produced from his ‘Ward’ folders. 5.) Exhibits 13-15: privilege log and memo from Price counsel, Craig Roswell and finally an excerpt of logs (June – November 2006), from Covington.
Obviously, it’s a lot. Could this be a reason the plaintiffs withdrew their motion to subpoena the defendants’ Verizon cell and home phone records? We wonder. Also, there appears no fight over what may be the most inflammatory documents, sexually explicit images that were found on Price’s AF computer. What does that say? And, why no subpoena of Price emails to Zaborsky?
Later this week the co-defendants’ responses to the first set of interrogatories, but first, some light reading. Any notes or scribbles in the margins are ours.
1.) The motion to compel, supporting memos, Razi affidavit
2.) Exhibits 1-10: the subpoenas to A-F; firm’s email policies; AF, Covington memos.
3.) Exhibits 11: The privilege logs A-F produced from Price’s ‘Wone’ email folders.
4.) Exhibit 12: The logs produced from his ‘Ward’ folders.
5.) Exhibits 13-15: Privilege log and memo from PCraig Roswell and Cov log excerpt