And So Are All Documents…For The Moment
A funny thing happened on the way to the clerk’s office…
August has proven to be a busy month, at least with regard to Kathy Wone’s pending civil case. Last week, Daniel Suleiman filed a plaintiff’s motion asking the Supreme Court of New York to issue a subpoena compelling Verizon to produce the defendant’s phone and email records for the period around August 2nd, 2006. The reason: such records are evidence of Price, Ward and Zaborsky’s state of mind, and also a snapshot as to the state of their relationships.
Further motions in support were filed, followed by a new filing from defense attorney Craig Roswell: “Defendant’s Joint Motion to Seal Plaintiff’s Motion for Issuance of a Commission to Verizon Communications, Inc., and to Seal Defendants’ Memorandum of Points and authorities in Support Thereof.”
Thinking these documents could provide insight into the pending case, we trotted ourselves down to Moultrie, paper in hand, to print up a batch of documents. Just like old times.
But we got a new surprise. The Civil Division’s offices on 5 are one floor above the criminal division, and a step up, too, in terms of efficiency. We need to make a new set of friends up there.
We soon found relevant records to Docket Item 2008 CA 008315 B, but trying to access any of them were unable to connect to the court’s database.
One, then two staffers began puzzling over the problem until a third staffer, looking at the docket number, nodded her head and said, “Oh, the Wone case…I just finished that one.”
“That one” referred to Roswell’s motions to seal. With that motion pending, all relevant motions are now treated as sealed until Judge Brook Hedge rules on them, and thus not publicly available. If the judge rules in the defendant’s favor, they will remain sealed; if not, they will be then again made public.
Perhaps far more interesting than that motion is the proposed scheduling order submitted by Kathy Wone’s attorney, Ben Razi, that’s also holed up at Moutlrie. Will Judge Hedge rule in favor of transparency and let the sunshine in at the September, 10 status hearing?
Aug. 6, 2010 – Statement in Support of Plaintiff’s Proposed Scheduling Order Filed. Submitted 08/06/2010 18:26. ms Attorney: RAZI, Mr BENJAMIN J. – ESTATE OF ROBERT E WONE (PLAINTIFF)
So another summer brings another waiting game. We just hope this one ends before the season does.
-posted by Doug
I’ve been waiting on those phone records forever. I think the phone records before the murder will be interesting and will clear up some things.
Please help me understand why the proposed scheduling order is “perhaps far more interesting” than the motion to seal the telephone records.
X3: I’m just curious to see what the calendar looks like and just how fast or slow the wheels of justice are expected to turn on the civil front.
While the phone records will no doubt be interesting, they did come up in an earlier plaintiff motion in February, 2009, as seen here.
I do think it would be interesting to see what “spin” plaintiff’s counsel is putting on the relationship angle.
Those of you who are waiting to see the phone records are likely to be disappointed since the fruits of discovery rarely make it to the court file, unless there is either a discovery dispute (and a motion related to that dispute brought before the judge) or a dispositive motion, like a motion to dismiss or a motion for summary judgment. I don’t think a list of phone numbers would be made available to the public prior to the actual trial (or a functional equivalent), especially since some of the calls could be from/to clients of Joe Price or calls to/from the defendants and their counsel.
The proposed scheduling order should provide the schedule for taking action in the case. The scheduling order usually includes dates for the following events: (1) deadline for discovery requests; (2) the date to exchange lists of fact witnesses; (3) information regarding expert witnesses; (4) the date for completion of discovery; and (5) the deadline for filing motions.
The order also sets the time frame for joining additional parties, amendment of pleadings, filing dispositive motions (e.g., a motion to dismiss the complaint based on the statute of limitations), a time period for mediation or other alternative dispute resolution proceedings, and the time period in which the final pretrial and settlement conference will be held.
Discovery often is conducted in a very opague manner where only the parties know what is going on in the case. I will have a few comments on the motion to seal after lunch.
What I can’t figure out is why the phone records were not part of the conspiracy and obstruction trial. Seems like something of an oversight to me.
The records could have been part of the stipulated evidence. Who knows? There are thousands of pages of evidence that have not been seen.
The basic argument was that the conspiracy and obstruction occurred during a period of approximately eight hours, from the time Robert arrived at the house to the time when the defendants stopped talking to the police. Joe Price allegedly set the stage when he presented his version of events to the police at Swann Street in front of the other defendants.
I’m not sure I understand you here. If the phone records are part of the stipulated evidence, then Kathy Wone and her attorneys should be able to access them, so why does she need a subpoena?
The other possibility is that the defendants (of course) have their own telephone records and know what they contain. Their motion may cite various of these records to illustrate something (or someone) they think should not be discoverable.
I don’t know if the phone records are part of the stipulated evidence (I have to go back and look at the stipulation summary), but Kathy and her civil lawyers may not yet have access to the records. I am not sure the USAO would turn them over voluntarily.
The records could include e-mail or texts, as well as records of phone calls. Who knows, there may even be photos! I know lots of people who send photos with e-mails or post to websites (e.g., Facebook) with attached photos.
I would definitely like to know about any cell phone photos taken on the evening of August 2, 2006. I have no idea whether these would be recorded if they were not sent along (since I remain blissfully ignorant of certain technological innovations).
Chilaw:
I think you hit it with the conspiracy charge — the conspiracy was a conspiracy TO OBSTRUCT JUSTICE. There needs to be a specific start point.
Phone / text message records that may show domestic tension prior to the homicide that may have contributed to the situation surrounding the homicide do not necessarily support the idea that the three were conspiring to obstruct justice in the days/weeks leading up to the homicide.
The phone/text message records may well, however, help to recreate a domestic climate that was rife for something to go wrong . . .
“Climate” is always important in a civil jury trial.
From the published reports in the Washington Post and the AP, this seems to be the thrust of the plaintiff’s request for the phone records (which is limited to one month before and one month after the date of Robert’s murder). It goes to establishing the state of mind of the defendants at the time of Robert’s murder. To the extent that jealousy or sexual relationships may have some bearing on why the defendants either engaged in some allegedly wrongful act toward Robert or covered up for some known intruder or other party, state of mind is relevant.
On the civil end, state of mind can sometimes be tantamount.
I think the complaint also addresses failure to act, which could also be influenced by the collective state of mind.
I really wish we could leave homo/hetero out of this. But I guess we can’t.
In the end, it makes one appreciate the final Seinfeld episode all the more.
Peace,
Deb
Too, the Plaintiff is not going to want to rely on the prosecutions’ notion of what was relevant or damning – it is time for a do-over. Also, just because the Plaintiff CAN get her hands on the records of the prosecution, she needs them to come to her directly for proof purposes, similar to other ‘chain of evidence’ concerns (unless Defendants stipulate to the prosecution’s materials). Me, I’d want to make sure no stone was left unturned and have a fresh look. In civil cases, there is a wider net and she’ll likely be able to get more info.
http://legaltimes.typepad.com/blt/2010/08/dc-officials-may-face-criminal-referral-judge-warns.html#more
A federal magistrate judge in Washington says his investigation into alleged destruction of evidence related to a mass arrest of protesters in 2002 could end in a referral to prosecutors. … …including former D.C. Police Chief Charles Ramsey. … The 14 officials include figures from the city and the Metropolitan Police Department, some of them high-ranking: Ramsey; current police general counsel Terrence Ryan; and a D.C. assistant attorney general, Thomas Koger. Two private contractors are also named. … Two of the 14 officials have asked to be excused from appearing Aug. 16: Ramsey, now the police commissioner in Philadelphia, and Peter Newsham, a D.C. assistant police chief. In an order Monday, Facciola agreed that they could be represented by their lawyers. Brown Rudnick partner Mark Tuohey III represents Ramsey. Robert Deso of Washington’s Deso & Buckley represents Newsham. …
http://legaltimes.typepad.com/blt/2009/08/districts-lawyers-face-possible-discipline-over-discovery.html
Koger [District’s lead counsel in the case, Senior Assistant Attorney General Thomas Koger] is no longer the District’s lead counsel in the case. In his statement, Nickles writes that he’s replaced Koger with Ellen Efros, an assistant deputy in the Attorney General’s Civil Litigation Division. Efros has already ordered sweeps of storage areas, and she’s coordinating with D.C. police and Mayor Adrian Fenty’s office to search for more documents, Nickles writes.
In addition, Nickles [D.C. Attorney General Peter Nickles] writes that former U.S. District Judge Stanley Sporkin has agreed to advise him “to assist in improving the management of discovery in our massive class action cases.” Sporkin, former general counsel to the CIA and now with Gavel Consulting Group, advised D.C. Chief Financial Officer Natwar Gandhi two years ago when prosecutors announced that two tax office employees had fleeced the city of more than $20 million.
…
Sullivan [U.S. District Judge Emmet Sullivan], in a July 29 status conference, compared the District’s discovery woes to the problems that plagued federal prosecutors in their case against then-Sen. Ted Stevens (R-Alaska). “It raises serious questions about when, if ever, can anyone trust their government,” he said then.
http://legaltimes.typepad.com/blt/2009/07/federal-judge-to-dc-there-will-be-significant-prices-to-pay.html
…Nickles [D.C. Attorney General Peter Nickles], a former Covington & Burling partner,…
Nickles said he doesn’t think there was any intentional destruction of documents. “Our document management system is not up to the document management system I knew at Covington,” Nickles said. He is urging city leaders dedicate more funding for document management in agencies across the city “so we can keep up with the large private law firms” in class action cases.
…
Mara Verheyden-Hilliard, a lawyer for one group of plaintiffs, said in court that she doesn’t think the government can blame a lack of resources for the missing documents. For instance, she said, information was deleted from audio tapes the city provided to the plaintiffs.
Verheyden-Hilliard said the “city has engaged in a practice of really a war of attrition and scorched earth litigation in this case. They have drawn it out and drawn it out and at the same time destroyed and lost the critical fundamental evidence to what went on.”
I guess it is good then that Kathy Wone will have the benefit of the document management system at Covington; however, I have not heard of similar problems with document management at the U. S. Attorneys’ Office.
The defendants’ motion to seal should not have resulted in other materials being sealed as I read the DC Code of Civil Procedure.
Section 5-III states:
Absent statutory authority, no case or document may be sealed without an order from the Court. Any document filed with the intention of being sealed shall be accompanied by a motion to seal or an existing order. The document will be treated as sealed, pending the ruling on the motion. Failure to file a motion to seal will result in the pleading being placed in the public record.
The plaintiff did not file a motion to seal with the scheduling order or the motion to subpoena the telephone records. As a result, the scheduling order and the motion to subpoena the telephone records, together with any supporting documents, should be in the public record.
The defendants can file a motion to seal with their opposition to the subpoena to the phone company. That “document” should be sealed until the judge rules on the motion for a subpoena.
However, in the long haul, as the District of Columbia Court of Appeals has said, “By submitting pleadings and motions to the court for decision, one enters the public arena of court proceedings and exposes oneself, as well as the opposing party to the risk of public scrutiny.” Mokhiber v. Davis, 537 A. 2d 1100 (1988). There is a presumption of public access to court records with respect to pre-trial motions in civil cases. The defendants should be required to establish that their penchant for secrecy is more important than the public’s right to know.
The District of Columbia Court of Appeals noted in this decision that depositions, interrogatories, and documents obtained in discovery but not submitted as evidence at trial nor filed in connection with pre-trial motions generally are not open to the public. As a result, unless one of the parties choose to disclose the information, either voluntarily or in conjunction with a pre-trial motion, these documents are not likely to be in the public domain.
Yes, there are scores of exceptions to these rules. You should not disclose someone’s Social Security number. Juveniles are entitled to special protections (including the biological children of Joe and Victor). Companies have trade secrets. Clients do not disclose the advice received from their attorney. There are good and valid reasons for these rules. If any of these reasons are present, the court can sort them out.
But blocking access to the entire court file in the civil case is wrong, especially in this case. There are significant issues in this case about why a murder remains unsolved, four years after it occurred.
Who is responsible? Who has standing to seek a remedy of the sealing? How is that done? And what would be the specific remedy? (Piecemeal or blanket coverage)?
The plaintiff clearly has standing to challenge the motion to seal. News organizations and other media entities could challenge the motion to seal on First Amendment grounds given the public interest in this case.
In various cases, news organizations have opposed motions to seal.
The remedy is either to ask the court to deny the motion or to take an alternative measure such as issuing a protective order, where certain information (such as Social Security numbers or trade secrets) is either redacted or subject to a protective order of some type so the precise information is not released.
This appeal for secrecy, to me, sounds like another delaying tactic: does Needham ever grow weary of footing the bill for these legal minuets?
Why would Craig be so insistent on this gag order if his client and “family” had nothing to hide? Surely, nothing could be more embarrassing or treacly than those cards already analyzed.
Will Lisa G.’s CNN challenge the motion to seal? I’m not holding my breath!
Roswell is Joe’s lawyer, isn’t he? This sounds more like Joe than Dylan, in my opinion. Frankly, I think that Joe HATES this website, and he knows that pretty much anything that’s made public on this case is going to end up posted or linked here. I’m going to guess that he called a lot of unsavory people in the month before and after the murder, and I doubt he’s going to want that on the Internet for the rest of time.
There is an open question here about whether this a a joint defendants’ motion (Joe, Victor, and Dylan), or whether it is a joint motion by the plaintiff and defendants.
Roswell is Joe Price’s lawyer, but this may be a joint motion by all of the defendants. Unless and until the motions are available, none of us can be sure.
I’m hearing the entire docket may NOT be sealed. More later and hopefully some paper too. Watch this space.
This would seem to be more in conformity with the DC Rules of Civil Procedure, as discussed above.
Dealing with court procedures (whether or not you are lawyer) can be intimidating, and being aggressive without understanding the correct procedure could put you in bad stead with the folks in the clerk’s office. Discretion can be the better part of valor. It is always a good idea to be polite with the folks in the clerk’s office.
Bill O,
Quite Frankly, I’d block everything too, just to stall, delay and be a dick!
I think this was a motion filed jointly by all three defendants (not just Joe Price’s counsel), but since the motion is under seal, we will have to wait and see.
If Kathy Wone wants it sealed and it was a joint motion (plaintiff and defendants) then it’s a non-starter – or so it would seem. I don’t know if that’s the case or not. Perhaps she wants to stay out of the public eye, much as it might help her ‘aggravate’ the defendants to have an ‘open’ discussion. As was pointed out, the ANSWERS to discovery would not be available, not unless passed along by counsel.
Using “unsolved crime” as a segue, I’d just like to go ahead and post a request to all here that we all do whatever it is we do (pray, cross fingers, think a happy thought, etc.) for cute, little Kyron Horman out in Oregon.
Editors, what is Brook’s track record on ruling on motions to seal? Is she a fan of the public’s right to be informed? Or, does she see secrecy as a necessary evil? Inquiring minds want to know!
It would be very difficult to assess this since motions to seal in civil cases typically are used in conjunction with the settlement of a case, when they are routinely granted because both parties agree. In those cases, the entire case file often is sealed. Defendants do not want other potential plaintiffs to have a primer on how to sue them or provide them new theories or arguments.
There is very little published case law on motions to seal in DC Superior Court in a discovery context.
I do not know why the clerk’s office takes the position that the whole file should be sealed based upon a motion to seal one document.
There was a recent case in DC where DC Superior Court Judge Judith Rodgers granted a motion to seal that applied to documents that previously had been public, and even went to so far as to order the National Law Journal not to publish the previously public documents. When courts take their dispute to court (as opposed to private mediation), most parties understand that the documents are public, unless the parties take affirmative steps to put them under seal.
My area of practice is civil litigation. The types of cases I handle usually involve delving into the personal details of the lives of those involved. A protective order requiring the parties to maintain virtually all evidence as confidential and to file information under seal is entered in nearly every case. It can be overcome by a member of the press.
The editors of this blog qualify as reporters. Anyone licensed in DC willing to volunteer time to challenge the order? I can assist with research and briefs, but I can’t appear as I’m not licensed in DC.
That’s a remarkably generous offer, Cat. I wish I were in a position to be of some help.
There is no order yet. The documents just are temporarily sealed, pending the court’s decision on the motion.
I agree that the editors of the blog are journalists entitled to First Amendment rights. I think it would be interesting if you were to write a little more on this topic, given your interest.
Kathy Wone is my home gurl 4 lyfe!
I’m kinda hoping she wants to keep things as public as possible. But I would understand if she wants her privacy at this point…
My thought is that the phone / email records might shed some light on why Robert planned on staying over that night; possibly that he was planning on some type of antics that went awry and the family will want to keep those messages private.
The email messages between Joe and Robert were part of the court record and contained no indication of planned “antics.” They basically consisted of “Can I crash on your couch? Feel free to say no.” and “Sure.”
Perhaps then some coorespondence btween the Joe and Dylan that could help make sense of it all. I’ve always thought if they conspired to do something that night (with Robert in the know or not) then there would be some trace of communication.
Coffee me on,
Did the police even check out the suspect’s computers, blackberries etc. that night? Phone records? They must have. They had a warrant to check the house, don’t the others go along?
If the communications were conducted over the phone (as opposed to by e-mail) or in person, the only two people who may know the content of those conversations are Joe and Dylan. After their initial police interviews, Joe and Dylan essentially stopped talking with the police. They did not testify in the criminal trial.
Oral communications directly between Joe and Victor, who are registered domestic partners, are subject to domestic partner privilege. (There would be no privilege for conversations between Joe and Victor in the presence of others, such as the conversation at Cosi after the police interviews.)
It remains to be seen whether Joe, Victor, or Dylan will provide deposition testimony in the civil case.
The police did not ask any questions in the interviews about any communications by and between Joe and Dylan prior to Robert’s visit, although Dylan does state that he knew Robert was going to stay overnight (suggesting there was some communication).
I guess one thing phone records would show is who was called when and what the phone traffic was like during possibly significant periods.
Phone records generally do not reveal content, but they do help locate potential witnesses. The timing and duration of calls is relevant.
For example, what if the phone records show that someone at 1509 Swann Street was on the phone continuously between 11:00 pm and the time of the 911 call, then show the 911 call. What if the phone records show a call to one or more third parties between 11:00 pm and the time of the 911 call on the night of Robert’s murder?
Does anyone know if they had more than one phone number? Perhaps one for a landline and another one or two for their cellphones? It would be interesting to see if a call went out to Michael Price that could have been a request come over to pick up some bloody towels. Or, perhaps, a call to the neighbor across the street, Scott Hixon, to ask if they could stow some camera equipment with him for a few days.
I haven’t read the messages below so someone may have stated this already, but phone records sometimes, if the police are thorough, contain the cell towers that the phone used, so we can track movement if the person carried the phone with them any where. However, it seems Joe is well aware of these things. He mentions it in the police interview. That is why I think the records will be more interesting before the murder. Unless, he is just that stupid. A big part of me thinks these records might be a let-down, only because if they contained a bombshell, seems like we would have heard more about them.
“Unless, he is just that stupid.”
Well, he did tell the detectives that if they searched his house, all they’d find was pornography. I’m still a bit surprised that he didn’t try to pre-empt the S&M gear with some sort of story. He had to know that was going to look bad.
I don’t think the phone records are going to show much, at least not right away. But I do think that there might be an uptick of calls to “new” people right after Robert sent his e-mail to Joe asking if he could crash on his couch, which could be quite illuminating. Also, I think your average drug dealer is probably used to not answering questions from the police; I think they’re less adept at handling subpoenas from civil litigators. Furthermore, I think that kind of thing would likely strain the dealer-client relationship, with unpredictable consequences.
Exactly. It would be very illuminating(or damning) to see if there might be calls made prior to the murder night that show the intention or procurement of illegal drugs, or anything else that might be used to “party”. This kind of information could potentially punch a series of holes in the stories of the trouple. It would not need to be recorded calls, but simply calls with proper timestamps to certain numbers known for providing certain services.
Sweet baby jeebus. I’m a hamster on a wheel.
Craig has already tipped the hand a bit, but I hate getting it wrong. Seems not all documents are sealed – I was misinformed by a court staffer, and failed to aggressively follow up, so I got it wrong when I said all motions are sealed. Only those relevant to the request. My error…and we will have proof tomorrow.
-Doug, co-editor
You should not feel bad for one second.
What is amazing is that the defendants moved to seal a document the defendants did not file.
The AP and the local press, including the Washington Post, the National Law Journal, Washingtonian, the Blade, and the local televisions stations (particularly the local Fox affiliate which regularly featured the criminal case) should be filing papers to oppose the motion to seal.
I hope Judge Hedge denies the motion to seal.
A dumb, non-lawyer question here: Why is it “amazing … that the defendants moved to seal a document the defendants did not file”?
Also, why has the fourth estate seemingly done nothing to oppose the motion to seal? Surely, some media organization should do something here, if only in an oblique bid to win favor with the sitting Attorney General.
It’s hard to say without seeing the motion to seal. Let’s assume plaintiff’s motion and related material explain why the telephone records are relevant to the plaintiff’s civil case. The motion may cite to some evidence from the criminal trial that explains why the plaintiff should be able to obtain the phone records.
Obviously, plaintiff (the Estate of Robert Wone) did not request its motion be filed under seal. The plaintiff’s intent was to make their request a publicly available document.
I do think media organizations should be interested, but they may be wanting to see what happens on the motion (or they may not even know a motion to seal was filed).
I guess I am just surprised the scorched earth defense is showing itself so early.
Discovery often is conducted in a very cooperative manner, especially as to things like scheduling and filing motions for business records. The Rules tend to encourage counsel to be flexible. When you see two different scheduling orders, motions to seal, and oppositions to routine requests for business records, it suggests a very tough litigating posture by both sides.
Sorry — no sorries allowed.
Here’s the call I’d like to know about (I never noticed this before, from the original Ward affidavit):
“During a break in the interview, Price is overhead talking with his brother Michael Price, asking, ‘Did Dylan come out?'”
I don’t know if phone calls/emails between the Price bothers are a part of these motions, but that’s a potentially damning little fact.
Why is that potentially damning?
I am not sure if it is “potentially damning.”
Joe simply may want to know whether Dylan might have been excused earlier, or it could be an indication that Joe was concerned that the police were focusing a lot of attention on Dylan. Did Joe view Dylan as a “weak link” or was he just concerned about his friend?
I took it to (possibly) mean that Joe was wondering about what Michael saw when he was at the house that night, particularly, whether Dylan ever came out of his room. (Certainly the prosecutors at least suspected at some point, that Michael was the killer).
Certainly not damning on its own, but I wonder if there was a lot of frantic email/phone activity between the Price brothers in the 12-24 hours after the murder.
That’s an interesting interpretation.
I think Joe could argue that he wanted to know if Dylan had come out of the Violent Crimes Bureau after completing his interview.
I do agree that calls between Michael and Joe (or the other defendants) on or around August 2 could lead to relevant information.
I wonder if there is anyway to pressure MPD to submit Robert’s case to the Vidocq Society.
That’s an interesting idea. Deb, why don’t you explain what the Vidocq Society is and how it may relate to the murder of Robert Wone?
Hi Deb – I was just thinking about the Vidocq Society last evening. I visited their website to see how cases for consideration are submitted to the group. It seems unlikely at this time due to the fact that the case is an active, “on-going investigation”, according to the MPD.
Great thought though!
I wonder how many detectives are assigned to the case.
What does “very active” still mean? Having Gail tail Mr. Hixson home from his interior design studio in her spare time? Auditing Michael’s classes? Getting a therapeutic (non-sexual) massage from Dyl? Editing the papers of Louis Hinton for the Library of Congress?
Another thing I learned from this site. Never heard of Vidocq Society before so googled ’em and found their web page. Also saw this interesting article:
http://www.kansascity.com/2010/08/11/2142835/the-murder-room-sheds-light-on.html