21 Hours

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.

Covington offices, 1201 Pennsylvania Avenue

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.”

1201 Pennsylvania Avenue, circa 1979

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.


26 comments for “21 Hours

  1. Michael
    12/03/2010 at 1:33 PM

    This is golden. I really hope they do grill them for the full 21 hours. It’s gonna be a total cry fest.

    • Clio
      12/04/2010 at 9:54 AM

      Yes, and I do hope that the questioners get to wear Mardi Gras masks and Louis XIV periwigs. The process could take place in the context of a faux masquerade ball, as the faux masqueraders (as husbands, friends, wives, citizens, etc.) are exposed for being the monsters that they may appear to be.

      Unlike at Anacostia, the defendants, of course, should have no magazines to read and, more importantly in the twenty-first century, no cell phone access, while taking the fifth or a dump.

  2. TK
    12/03/2010 at 2:02 PM

    Who knows, one of them might finally snap under the pressure.

  3. CDinDC (Boycott BP)
    12/03/2010 at 2:51 PM

    Ah, yes. Turn up the heat. It’s cold outside.

  4. Bruce
    12/03/2010 at 2:51 PM

    I think this plaintiff’s reply is a good one: succinct and to the point, very logical, and raising all the necessary arguments. Can’t say anything about the cases cited as I have not read them.

    I agree with this reply by plaintiffs that it is no great burden to Ward and no prejudice can result to Ward by Ward simply orally answering the question as to whether he is accepting his attorney’s instructions. “Yes” or “No.”

    Yet, if the judge allows what the defense is doing to continue (with Ward’s silence)…

    …it would also likely allow for the possibilities of ambiguity or a failure to satisfy the requirements of allowing plaintiff to claim adverse inferences from the defendants’ claimed invocations of the 5th Amendment.

    Very minor point: The citation to Doe opinion at the bottom of p. 3 in plaintiff’s reply incorrectly refers to the opinion as being decided in 1975. This is a glaring error, which can be (and was)determined without reading the opinion. The opinion would have to necessarily be after 1993, because it is an F3d cite, and F3d citations (as opposed to the earlier F2d citations) began in 1993. The Doe opinion was actually issued in the year 2000. But, all is forgiven.

    • Craig
      12/04/2010 at 9:17 AM

      Regardless of how Hedge rules on the 5th, is there a process play for the plaintiffs at trial?

      In addition to the adverse inference the jury is allowed to make with the 5th claims, can Razi get up there and say to them that even those had to be dragged out of the defendants and that a court order was required to force them to mouth even those few simple words?

      • Clio
        12/04/2010 at 10:36 PM

        Let us hope that PapaRazi can tell the truth to the jury members, who, if they are not comatose and/or bought and paid for, will see Ward’s theatrical dumbness as a problem.

        • Rich
          12/05/2010 at 12:41 AM

          I’ve said it here before:

          Ben is very straightup,responsive and forthcoming.

  5. 12/03/2010 at 7:06 PM

    Recently, in the Chandra Levy case Conduit refused to answer certain questions but that was a criminal trial and he was not the defendent.

    • Bill Orange
      12/03/2010 at 10:59 PM

      Can any of the lawyers comment on this? I still don’t understand why Condit wasn’t held in contempt for this.

      • 12/04/2010 at 12:37 AM

        thanks for spelling correction. My only thought from a nonlawyer opinion is he is not the defendent and this is a criminal trial. I know the defense has something up there sleeve imho w/ this strategy–please judge stop OJ moment and let them manup and talk–at least say they assert their 5th. cONdit won’t have to worry about perjury or civil suit cause he was mum.
        as with OJ from my lowly opinion civil is much more leniant–let them voice

        • carolina
          12/04/2010 at 9:12 AM

          The root of this “Dylan must say the words” issue is that in a civil trial a jury may consider invoking the Fifth in a negative light.

          This isn’t the case in a criminal trial, and as you mentioned, Gary wasn’t the defendant. Interesting, though, that he thought he might criminally implicate himself by answering. The Fifth isn’t about “that’s none of your business.”

          • Bill Orange
            12/04/2010 at 11:13 AM

            I don’t think Condit ever formally invoked his fifth amendment rights, though. He just said it was nobody else’s business. I still don’t understand why he wasn’t either forced to invoke or declared in contempt of court.

            • susan
              12/04/2010 at 1:20 PM

              Selfish, self-centered man, Gary Condit. Saving it all for his book, perhaps. Maybe the judge sustained his refusal to answer, agreeing it wasn’t relevant.

              Had he cooperated with police from the get-go, maybe their attentions would have turned towards Guandique or elsewhere sooner. Instead all he did was think of himself. And the women he had affairs with who he gifted with silver bracelets of which he kept a supply in his desk in Congress. And poor Chandra Levy thought it was a special gift to her alone. Little did she know about that desk drawer supply and the other stupid women out there with silver bracelets, with love from Gary.

              • CDinDC (Boycott BP)
                12/04/2010 at 1:29 PM

                Very sad, Susan.

                I’ve always believe Gary Condit had more to do with the murder than ever came out.

                Why would Chandra decide to visit a little known landmark in the depths of Rock Creek park just hours before her planned departure. And to leave without her ID or wallet (which, by the way, was a rule that she followed when meeting up with GC.)

                • Clio
                  12/04/2010 at 10:33 PM

                  Gary Condit — the Republicans’ favorite Democrat before Joe Lieberman’s stint as independent. Please Lord, spare us from any more “New Democrats” like him!

                • susan
                  12/04/2010 at 10:48 PM

                  I don’t know CD. So much that is odd. Again, had that scumbag Gary Condit cooperated with the investigation into C. Levy’s murder, there would be more answers. Yes, why did she look that up on the web and decide to make that run so soon before leaving for California. But then again, I thought that the front desk people at her residence said they saw Guandique there in the lobby. And I believe that it is believed someone was in her apt. after her murder. Did G have her keys? Did Condit? Who was there after she disappeared and before police were there.

                  I think Condit is disgusting (in case it wasn’t ultra evident) and I hope his book loses his publisher money. I have no respect either for the wife who stayed with him. Thank Goodness he no longer befouls the Congress.

                  Clio, much as Lieberman has been a disappointment I did see him the other night on TV testifying about how rotten don’t ask don’t tell is. He was very passionate about it as he was questioning Adm. Mullen. For that he has been somewhat redeemed I think.

                  • Clio
                    12/05/2010 at 2:11 PM

                    Perhaps, Susan, but then again this particular Joe just voted against taxing the very rich, pleasing his buddy McCain on something (to them) which really matters.

                    Dylan had no problem in working with Republicans, especially given Diane’s possible activism: in 2005, as Equality Virginia’s development officer, he helped to coordinate an August 21, 2005 house party in Purcellville, Virginia in coordination with Log Cabin Republicans; the Log Cabinners are from the organization, which, incidently, brought the current suit to abolish DADT.

                    • susan
                      12/05/2010 at 10:07 PM

                      Thanks, Clio. Didn’t know that about Joe L and the tax vote but that certainly brings him down several notches. He should go the way of Condit–sans the extramarital affairs and cover-ups, of course.

                      Interesting about the Log Cabin guys and DADT. Glad to see they are at odds with DADT.

      • Bea
        12/04/2010 at 5:40 PM

        Bill O, the attorney questioning Condit could have pushed the Judge to compel Condit to answer and a bench conference would have been called – all in all, under the circumstances, the attorney decided to let it pass. Whether Condit slept with poor Chandra Levy had no bearing on the trial at hand.

        • Bill Orange
          12/04/2010 at 11:17 PM

          “Whether Condit slept with poor Chandra Levy had no bearing on the trial at hand.”

          I don’t agree with you on that point. If I had been on that jury, Condit’s behavior on the stand probably would have cost the prosecution their case. Any competent defense team should have pointed out that Gary Condit had a very powerful motive for killing Chandra Levy. It doesn’t mean that he DID kill her, but the defense team has the right to explore that possibility. Frankly, I think that Condit should have been charged with obstruction of justice even if it had been convincingly proven that he had nothing to do with the murder of Chandra Levy.

          • Bea
            12/05/2010 at 3:23 PM

            You may be correct, but if so it was up to the defense counsel to push for the answer – he didn’t take the 5th so technically he had to answer. There just wasn’t a follow up to compel the answer.

  6. Clio
    12/04/2010 at 10:35 AM

    What does “action for seduction” mean in reference to Clifton v. Granger (1892)? The phrase sounds uncomfortably reflective of the milieu of alt dot bomb.

    • Clio
      12/05/2010 at 1:27 PM

      And, in another minor footnote, what a major change that there was between 1979 and today in reference to 1201 Pennsylvania, from the photos posted above!

      Does the history of Covington include any other previous help to families of former employees seeking civil redress? Is this Wone case setting a precedent for that law firm?

    • Bruce
      12/05/2010 at 4:53 PM

      Dearest Clio:

      You ask. I answer.

      The Utah supreme court has defined seduction as:

      “the offense of inducing a woman to consent to unlawful sexual intercourse, by enticements which overcome her scruples” and as an act involving “some undue influence, artifice, deceit, fraud, or . . . some promise to induce the plaintiff to surrender her chastity and virtue.” Bowers v. Carter, 59 Utah 249, 252, 202 P. 1093, 1094-95 (1921)

      The days of galantry are over though, Dear Clio.

      Most states no longer allow or recognize the action (I don’t know about Utah), although I seem to recall that one of the Carolinas (SC?) may allow it or allowed it until quite recently, because there were some recent cases out of there as I recall.

      As we all know, a lady’s scruples are always on the tips of the minds of young male pupils.

      Good Day! I said Good Day, Sir!

      • Clio
        12/05/2010 at 9:11 PM

        Thanks, Bruce. Seduction (at least the seduction of a biological woman by a heterosexual man) is now legal in nearly all states; I can rest more easy knowing that, NOT!

        Thus, in Clifton v. Granger, I’m assuming that the lawyers took the 5th for the gentleman involved because of the embarrassing details of a seduction of a lady. Switching to the twenty-first century, Dyl and Joe have probably been pictured in more embarrassing tableaux than a heterosexual seduction: so, IMHO, why can’t they take the Fifth themselves!

        Victor, as the Victorian angel of the house, may be a more delicate flower than his/her fellow defendants and may need that extra shielding from his/her lawyers, however.

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