Plaintiffs Reply to Defense Opposition on the 5th
Under DC Civil Code Rule 30(d)(2), the plaintiff is entitled to one day of seven hours of deposition testimony for each defendant, absent a further order of court.
Multiply that by three and Kathy Wone has the opportunity, if her Covington team chooses to run out the clock, to witness her former friends being grilled mercilessly for a full twenty-one hours.
The aborted Ward deposition from November 10, which set off this 5th amendment firestorm began at 9:33am that morning and for all intents and purposes, was over fifteen minutes later at 9:48am. We’re not sure if the fifteen minute conference call with Judge Hedge that was supposed to settle the impasse counts against the plaintiff’s allotted time.
In order to get Ward and his two co-defendants to actually mouth the 5th Amendment privilege claim instead of defense counsel doing so, Covington filed a motion to compel Ward and company to actually say the words.
The defense opposed the motion of course and just recently, as per Hedge’s instructions, the plaintiffs have filed their reply to that opposition. And reply they did.
Covington’s Ben Razi writes that in no way does Rule (D)(1), which the defense claims entitles the defendants to silence, justified Ward’s conduct:
“But nothing in Rule 30(d)(1) absolves the witness of his obligation to speak; permits counsel to testify in the witness’s place; or overrides Rule 37(a)(2), which provides that “[i]f a deponent fails to answer a question propounded or submitted under Rule 30 . . . the discovering party may move for an order compelling an answer.”
And compel they did. This filing works to back up that shot across the Swann Street bow.
Slamming the opposition filing, page three of the reply notes what they consider to be some crafty legal sleight of hand:
“As the Sixth Circuit explained in United States v. Mayes, in language omitted by an ellipsis in Defendants’ quotation of the case, “the nature of the privilege is such that in the final analysis the controlling decision is that of the witness himself.” 512 F.2d 637, 649 (6th Cir. 1975).”
Several pages of the plaintiff’s reply goes on to strike down defense precedent claims. Razi writes that, “In their opposition brief, Defendants cite several cases which they would have the Court believe justify Defendant Ward’s conduct at his recent deposition. In fact, Defendants’ cases—only one of which involved a civil deposition—do not help Defendants’ opposition and actually counsel in favor of granting the motion to compel.”
Covington states that the criminal case precedents cited by the defense are ‘inapposite,” and that they are all wide of the mark.
On page five of the plaintiff reply, five bullets strike down five defense citations: US v. Johnson, US v. Mayes, US v. Colyer and US v. Pritchard. Then in the final bullet, an 1892 Iowa case, Clifton v. Granger, has the legs kicked out from under it. The civilians here might be surprised to learn that Lexis even catalogues such fossilized cases from the 19th century.
Also on page five, a crystal clear statement and warning to the defense:
“Mrs. Wone intends to seek an instruction allowing the jury to draw an adverse inference from Defendants’ Fifth Amendment invocations. As a result, Defendants’ testimony, even if it consists of Fifth Amendment invocations, is important substantive evidence—far from a mere formality.”
Maybe this means that those twenty-one hours will be marathon sessions of question after question without the defendants having the luxury of making a blanket privilege claim, if indeed Hedge does order them to speak.
In wrapping up, the reply says that personally invoking the 5th by the defendants will not impose any burden on them or prejudice the proceedings.
Then in stating the obvious, Razi closes with this: “That is all Plaintiff is seeking here: that Defendant Ward verbally indicate whether he intends to invoke the Fifth Amendment. Surely that it is not too much to ask in what is, after all, a “Deposition Upon Oral Examination.” D.C. Super. Ct. R. 30.”
This all comes to a head next Wednesday, December 8, when this motion, among several others, will be argued in front of Judge Hedge. On Monday, a preview of that full status hearing agenda and come Wednesday, it’s back to Moultrie’s 5th floor.
PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DEPOSITION TESTIMONY OR FIFTH AMENDMENT INVOCATIONS BY DEFENDANT WARD