What Could Possibly be in There?
Last Monday, the defense motioned to seal the plaintiff’s motion to subpoena the Price, Ward and Zaborsky phone and e-mail records from Verizon. Now, taking that one step further, the defense has moved towards the wholesale opposition of the plaintiffs even getting a look at the records.
This just into the clerk’s office:
08/12/2010: Defendants’ Joint Opposition to Plaintiff’s Motion for Issuance of a Commission Asking the Supreme Court of New York, New York County, to Issue a Subpoena Compelling Verizon Communications, Inc. to Produce Defendant’s Telephone and E-Mail Records from the Relevant Time Period Filed.
Saturday’s item by the Post’s Keith Alexander had this: “…attorneys for the three men objected to the records request, arguing that it is a violation of their clients’ privacy.” (emphasis ours)
Why do simple privacy concerns not make sense here? Discuss, after the jump.
In the government’s obstruction case, phone and e-mail records were also pulled. The defense may have motioned to keep them out of that trial as well, but those efforts failed. We learned that a thorough examination of the communications traffic by the USAO yielded no smoking guns.
So what is it then? At the trial, by way of e-emails and cards, we heard of strains in the relationships, with Dylan Ward possibly pulling away from Joe Price, and friction between Joe and Victor. Perhaps there is something in these records that did not make into the government’s sanitized case.
Something the defense may consider prejudicial? Something more inflammatory than we have already seen? That’s what we’re hearing.
We hope to have this joint defense motion later today (if that isn’t sealed) to see what can be divined from the language. We’ll update and post the document when he know for certain.
Until then, we’re just left to wonder what parts of these records the defense is so hell bent on keeping private.
-posted by Craig
How important is privacy when trying to prove you didn’t murder someone?
Privacy isn’t important if you need to prove you didn’t murder someone. If you were actually involved in a murder and hadn’t been charged, it seems you would want all your info to be kept private.
“That’s what we’re hearing.”
Do tell.
Yes, do tell, Editors. Was Mr. Hixson a frequent caller, both telephone and otherwise, at 1509 Swann? Is that whose privacy the trouple really wants to protect … for their own protection, of course?
Was the younger Price a frequent caller, and was he particularly busy dialing during that fateful evening? Michael must have been on the horn for a long time to have missed class for the first yet not only time.
Will Miss Morgan’s phone tree of confirmed bachelors also be looked into by Covington? She may have confided her security fears to someone other … than her darling Victor.
Yes, do tell, Editors. Would any of this courthouse scuttlebutt that you are hearing have to do with Mr. Hixson? Indeed, was Scott a frequent caller, telephone or otherwise, at 1509 Swann? If so, is that whose privacy the trouple wants to protect … for their own protection, of course?
That begs a second round of questions — this time, about the younger Price. Was Uncle Michael a frequent caller at 1509 Swann, too? Was he especially busy dialing his brother’s home that fateful evening? The former butcher must have been on the horn for a while to have missed his class for the first yet not the only session.
Then, of course, one hopes that Covington will “shake” Miss Morgan’s phone tree of confirmed bachelors. The Art History major at Trinity may have confided her fears about the strange goings-on at Swann to someone … other than her darling Victor.
Oops, I thought that my first response above did not go through, but, alas, it did! Apologies to all!
Some of those calls were stipulated in the criminal trial so I wonder what the Cov team has in mind for the records.
Any reason why they won’t try to piece together a corresponding timeline with the calls of M. Price, the tooth fairy/training wheels call from Silver Spring, Morgan’s calls, etc.? Can potential witness phone records be subpoenad as well to verify their expected testimony?
Obtaining the content of e-mails from Verizon is much harder in a civil case than in a criminal case. While I am not really in the know on this topic, the Electronic Communications Privacy Act is an obstacle to obtaining this information from Verizon (as opposed to retrieving the material from the defendants–who could assert a Fifth Amendment right in appropriate instances).
Of course, some of the information already is in the public domain as a result of the obstruction/conspiracy/tampering with evidence criminal case. It is hard to see how the defendants have any expectation of privacy as to these e-mails.
I would like to read the intruder’s e-mails before I read any of the trouple’s. Is this possible?
You would be intruding on the intruder’s privacy.
Chilaw79, just for clarification’s sake is this a battle in effect over the same content that was already examined in the previous case or other and additional content as well do you think?
Without the actual documents, it is hard to say.
The requested materials in the civil case appear to be limited to a two-month period (while some of the materials in the criminal case were farther out). Some of the materials (e-mails back and forth between Joe and Robert) were voluntarily provided by Joe to Kathy Wone.
It is not clear how much the Government had in the criminal case and what else it may have generated. The DC Police got a lot of search warrants for computers, cell phones, and related records, but, except as previously disclosed in the criminal case, I have no idea exactly what the Government has at its disposal.
My impression is that it is much easier to gain access to these types of materials in a criminal case than in a civil case. I am not sure whether Robert’s Estate can bootstrap access through the criminal case file, but I do not think the defendants could invoke the Fifth Amendment to block access to their phone records and e-mails in the criminal case.
I have to think the issues concern other or additional content.
It might be worth noting that while the materials may be “available” in the criminal record (excerpted) or even in full volume in the US Attorney’s files, in the civil trial Kathy Wone will need to “prove” the emails are correct and came from/went to defendants and can’t just photocopy the existing ones. Similar to ‘chain of evidence’ proof (was XYZ evidence found at the scene properly handled and tested and can someone vouch for this on the stand).
My guess is that the devil is in the details with these emails. While the Govt. offered a few emails as to state of mind (Sparkly Cat’s discontent) there are likely others which are far more prejudicial that Plaintiff will want. Total hypothetical – if there are email exchanges between Price and a “third” from alt dot com about liking violent sexual scenes, forwarded to Dylan, but kept from Victor – or emails about Victor’s disapproval – could be a number of things.
Curious what the Eds. know here. . .
Bea: We don’t know all that much but we hear things on occasion.
Should we also expect another set of plaintiff motions (and defense responses) regarding phone and email records from places of employment: A-Fox, IDFA and AB Data?
There is no reasonable expectation of privacy in workplace email, or indeed any communications conducted through workplace systems. There are very recent cases establishing that there is basically no privacy in workplace communications, including private email accounts accessed through an employer’s server.
I sure would think so, especially since there would be no expectation of privacy in your personal e-mail at your employer (absent some unusual statement in an employee handbook or other privacy policy). On the other hand, I am sure Arent Fox would claim attorney-client privilege for a wide swath of non-personal e-mails and IDFA may have other issues (e.g., trade secrets, etc.)
If the material was successfully subpoenaed by the USAO in the criminal trial, can K. Wone’s atty’s subpoena the docs from the govt?
Also, isn’t the big diff. here that the govt may or may have had access to the records in the criminal trial but the Wone family never has. This is her case now–and yes, maybe the govt missed something in the criminal trial or didn’t play up a particular angle as Bea alludes may be possible.
-Are all the docs that were brought forth into evidence in the crim. case now public record? What about material collected but not registered as evidence in the govt’s case?
My guess is that they HAVE those documents but need the defendants to be forced to provide them (chain of evidence, so to speak) AND to say “that’s all there is” (from Yahoo or whomever).
Just saw Price coming out of the Au Bon Pain (maybe he didn’t realize it was French for bread and really thought it was the English work!) near Superior Court. Anyone know if he is back to lawyering for Arent Fox or others???
In a suit?
Are you asking what he is wearing or whether he is working on a case?
Joe Price is an active member of the DC Bar, but he does not show an address or affiliation.
He’s also an active member of the Virginia bar.
Yes, minus the jacket due to the heat I guess.
The comments in the Washington Post blog entry on the trial date include a comment from an individual who saw Joe dancing the night away recently.
I wonder if Joe appreciates the attention he gets on the dance floor.
By the way, the WaPo comments section makes the postings here at WMRW seem bland and cerebral.
Whoa, you’re right. I’d not been monitoring WaPo’s discussion group til you just mentioned it. However, someone on that group wrote that Covington and Burling “sees a big payday from the insurance companies.” If so, I don’t understand what pro bono means. Do the two pro bono law firms (representing the estate) stand to profit monetarily if the suit is successful? Do they get a percentage of the agreement or award? BTW, that same WaPo poster refers to “the harpies on that sicko-prurient website.” I guess that’s US, huh??
Oh my, I think I need a link to that fun.
signed,
Senior Harpy
http://voices.washingtonpost.com/crime-scene/keith-l-alexander/wone-trial-date-set.html
and then go to the comments section.
The Harpies? That sounds like a 1960s pop band!
“Sicko-prurient” — translation: this weblog is really having an impact!
Pro bono means pro bono, as far as I know, it does not mean contingency fee. In most pro bono cases, even the expenses are not paid by the client (and I should know).
The quality of newspaper comments is pretty low,and often racist, homophobic, and xenophobic. Sometimes I wonder why newspapers even bother.
Sounds like we are back to square one. “We didn’t do it, don’t know who did. Leave us alone.”
This just in from the Court: The defense joint opposition relates to the document for which there is already a pending request to seal – so it is provisionally sealed until Judge Hedge rules on the request.
And speaking of Joe Price, on Wednesday we’re back with the next episode of the Anacostia Dialogues.
For which he was not wearing a suit.
And thankfully, for that clip at least, he was not in his birthday suit, or in a track suit circa 1988.
Or the tighty-whiteys.
One never opposes boxer briefs, however.
So, toally unrelated…
If we cannot have the, “Smut,” then someone please explain what the, “Icons,” next to our names?
What do they mean?
I think those are holding spots for your “avatar.” Some folks have a photograph or other illustration.
I wonder how they get the photos up there?
we’re special. 🙂
(i think gravatar dot com is the website)
please upload images. the crazy quilts don’t go with the design of the website, ack! and we all should express our creativity!
Purple is my favorite color; I thought they just knew.
I wanted to clarify something I said in yesterday’s posting. It appeared to me that Judge Hedge earlier had simply deferred ruling on the earlier version of the plaintiff’s discovery request in the civil case regarding a subpoena for Verizon records.
Based on some additional reading (of which there is always too much), it appears that the discovery request was denied at the same time Judge Hedge stayed discovery in the civil case (so as not to prejudice the criminal case relating to obstruction/tampering/conspiracy). It definitely appears that this denial was without prejudice (which means the plaintiff can try again). The plaintiff now has refiled, the defendants have opposed, and the whole thing is sealed so no one knows the precise rationale on which the defendants oppose the motion. However, it seems obvious there is no active pending criminal indictment against the defendants. This means the defendants need a new rationale to oppose and the Washington Post article suggests the rationale chosen is the vindication of the defendants’ privacy rights (as opposed to privilege or relevance).
The more I think about this, the more convinced I become that plaintiff’s may be able to make more use of e-mails and telephone logs than the Government could in the criminal case. The Government did make some headway on the “state of mind” and relationship issues. In addition, there could be other e-mails that may be relevant.
For example, did Sarah send Joe or Victor e-mails about her concerns regarding security issues? We know Sarah called Joe to tell him she set the alarm before leaving home on the night of August 2. In some ways, this always seemed a strange thing to do to me. I assume it would be obvious the security system when any resident of 1509 returned home. Could Sarah have been expecting someone from outside the home’s arrival?
We also know that Victor called Joe and let him know he had gotten home early. Did this prompt phone calls from Joe to Dylan, or anyone else? We also know that Victor and Joe were on the phone about the lost tooth and the bicycle, and that Michael Price was on the phone with Joe.
We also know about a call to the cable company and Robert calling Joe at home. Robert also contacted Joe by e-mail and Joe responded to set up the overnight stay. All of these calls and e-mails have been disclosed, but they do not show the other calls and e-mails in the weeks before or after the murder.
The disclosure thus far is pretty selective. I personally would like to see more context. Did Joe or any of the other defendants complain about Robert? What efforts were made to have a “third” during Victor’s absence (or do these e-mails refer to Robert)? Did Sarah provide “reports” to Victor of the goings-on during Victor’s absence?
In addition to the possibility of Sarah Morgan providing “reports” to Victor, her e-mail and phone records may show how far in advance she planned to stay away from Swann Street that night. Her departure with toothbrush to watch TV with two friends seems to fit in with Joe and Dylan’s playtime plans for when Victor is out of town.
Phone records could also show if there was a call to Scott Hixon after 11 p.m., asking him to come over to pick up a few items to store for a few days. Did he actually see the underwear guy from standing at the door of 1509 Swann Street while retrieving a few items or did he simply notice underwear guy from his own front window as he previously claimed? There are a lot of possibilites that may turn up in those phone and e-mail records.
I know this is a hard ask – but can any of the lawyers comment on 2 questions I have:
1. To what extent do you think the trouple’s lawyers are simply following a strategy of deny, deny, deny, that is, they will routinely oppose any and all requests from the plaintiff regardless of their content?
I am not a lawyer, nor do I play one on tv, but I would be tempted to follow the strategy of playing routine hard-ball if I were charged with defending this case.
and
2. If you believe that this is the strategy the lawyers are pursuing do you think that there is a point at which this strategy becomes “unreasonable” both from a legal standpoint (e.g. will no longer be tolerated by the court because it is time-wasting and frivolous) and from a public-relations standpoint (e.g. it just makes their clients look more and more guilty of something).
Pleased to hear any thoughts.
Based on my experience as a plaintiff’s lawywer, this is, unfortunately, standard insurance defense strategy and procedure. But I can assure you the court has seen it all before and will make some tough rulings for both sides if there is a chronic inability to reach agreement. Not always fair but that’s how it goes.
And no, it does not make for the best PR but in the wake of Judge L’s comments in her ruling, perhaps the defendants don’t see much use for PR.
Although I will have more to say on this, I do think the defense strategy is “deny, deny, deny,” although I think it is a Fifth Amendment variant. In the back of their minds (or maybe the front of their minds), defense counsel (particularly defense counsel with a criminal law background) is going to be concerned that any testimony in the civil case could be grist for a criminal investigation (and Chief of Police Lanier has said there is an active investigation).
On the second part of your question, the DC Code of Civil Procedure encourages the parties to cooperate. In my experience, when the parties show an inability to get along, the judge starts to get annoyed and usually takes it out on the party the judge views as most culpable. Judges do not like to have to deal with motion after motion on routine discovery issues.
This is particularly true in this case where the defendants have substantially more access to the facts than the plaintiff does. It is in their interest to block access to the facts. Fortunately, for Kathy Wone, Covington and Burling is not easy to push around and Kathy Wone is a very sympathetic figure. On the other hand, insurance companies and their money are not easily parted.
Thanks for your interesting replies. It had slipped my mind that criminal charges for the murder of Robert could still be outstanding, and, yes, the civil trial presents a mine field of opportunities for the trouple to slip up and reveal something incriminating.
I wonder if Kathy and her lawyers are “chatting” with the police.
There currently are no criminal charges outstanding for the murder of Robert Wone. In fact, there have never been charges brought against anyone for his murder.
There is no statute of limitations on murder. This means that murder charges could be brought five hours, five days, five years, or five decades after a murder.
The Chief of Police for DC says there is an active investigation into Robert’s murder (although I question exactly what that means). DC has improved its clearance rates in homicide cases, but it would take a break for Robert’s homicide to result in criminal charges.
Sorry, my imprecise use of the word “outstanding” in the context. I appreciate your point that murder charges could potentially be brought at any time in the future. I’m sure this fact powerfully concentrates their mind.
Hi Emily:
As to the two questions for lawyers you posed a few posts above:
(1) Strategy of deny, deny, deny. I think the context of your inquiry goes to the subpoenas for e-mails and phone records, but it may also be as to a true “strategy” for discovery and trial. I’ll answer the second interpretation, which affects the first.
A lot of it has to do with the personality of the attorneys and how they were trained, and what they have found works best for them in representing their clients. I would say that most attorneys don’t play the game of “never agree to anything.” Of course, you must always act in discovery and at trial in the best interests of your client. But is it in the best interest of your client to act like an unreasonable ass all the time? I don’t think so.
I am probably not the “average” trial attorney. I will always shake the hand of my opposing counsel when the jury returns its verdict, no matter who wins or loses. I will give courtesies to the other side (like getting a call from the other side right before trial….they can’t find a transcript of a dep….can I e-mail it to them immediately? Of course. I may need something from them before or during trial.) Once, an opposing counsel was stuck in horrible traffic and couldn’t get to the first half hour of a deposition that had to proceed exactly on time. I suggested, and got it done such that he could hear and make any objections by way of his cell phone until he got to the dep. He was very appreciative and kept looking for ways to help me (in ways that did not adversely affect his client) after that!
I will be friendly to opposing counsel unless and until they act in a manner that does not reciprocate. That sometimes happens, but it is really a diversion to want to “hurt” the opposing counsel. Your goal is to represent your client.
Have I ever really disliked the opposing attorney? You bet cha! But the jury would never know it from the way I act in the court room.
I say the things above, not to try to impress, disappoint (or shock!), but just to show that there are many ways to be a good trial lawyer and represent your client, and I may not be the best person to comment on hard ball strategies, because I don’t ever do it, except in a few situations that best representing my client required it.
It is certainly possible that the Swann 3 attorneys will play what I call a “scorched earth” strategy, fighting everything tooth and nail, and not giving an inch on anything, including not following certain courtesies usually given between opposing attorneys.
Frankly, I have never done that in the trials I have been involved in as a defense attorney, and I see this rarely on the plaintiff’s side either. To me, it is a bit old-fashioned, but it can certainly be effective in certain situations. Here is why I don’t do it, and this includes some reasons why I don’t think the Swann 3 should do it:
(a) It can really piss off the judge and the jury. Now, it is not the judge deciding the case, it is the jury. But prior to trial, the judge makes many many decisions about what evidence can go in, etc., as she also does during the trial.
There are many opportunities for the opposing attorneys to agree on certain things without involving the judge. If you apply a “scorched earth” approach to everything, you will not agree to everything, you will constantly be in front of the judge for hearings, and you suffer the possibility that the Judge finds you unreasonable and, that she just doesn’t like you. At trial, this may be apparent to the jury. The jury watches the judge and can pick up on how the judge feels about the attorneys (and, by implication, their clients). The jury trusts the judge above everyone else in the court room.
If you act defiant to everything, the judge can tune you out when you want her to rule your way, and if you do this during the trial, the jury can tune you out also.
To me, the best attorney at trial, is the one that both the judge and the jury finds reasonable and fair. If the judge and jury find you to be just an advocate and a shrill for your client, they aren’t really going to “listen” to you, especially in closing argument, the part of a civil trial that many people think is the most important part of a trial.
(b) The “scorched earth” approach is expensive. If you can pick up the phone and work out something by agreement with the opposing counsel, rather than have to file motions, responses and appear in court, you have probably saved your client several thousand dollars in attorney fees.
(c) You really need to “pick your battles.” There are so many battles that can go on, many of which do not really affect your client. If you fight on everything, including dates for depositions, etc., responding to written discovery and such, you are just wasting energy. Save it for the items that really affect your client.
(d) While some clients want or expect the “scorched earth” strategy, I think they tend to be less sophisticated. And I also find that they can be pretty impressed when you get things you want without the big fights.
In my last trial, I had the opportunity (because, frankly, a couple of the other attorneys in the case were hot-heads), to be the “reasonable guy” in front of the jury. Act polite and give courtesies to your opposing counsel in front of the jury. Be forever respectful to the judge. Be tough on a witness only when you have to do so. Otherwise, show courtesies to all the witnesses. Develop some trust with the jury. The one thing I found out is that they really listen to you when you do your closing argument, because at least some of them look at you as the voice of reason.
Now, do I think that the Swann 3 attorneys will just play hard ball “scorched earth” on everything? Hard to tell. Frankly, I think they would be foolish and not best representing their clients if they do so.
(2) Your second question goes to the “smartness” issue in taking a hard ball “scorched earth” strategy. I think I answered this in part (1) of this e-mail, except for the public relations part.
I don’t think that public relations regarding their clients is a factor in the Swann 3’s attorneys’ minds now that the criminal trial is over. And I don’t think it should be. This murder happened years ago, most people have made up their minds, and there is no way to change that. Makes it a challenge to find a juror who is not tainted, but there is no public relations in this case that will help their cause.
The only thing the Swann 3 attorneys should be concerned about is “judge relations” and “jury relations.” Forget anything about public relations, or how anything they might do could affect that.
Hope this gives an answer to your questions.
Bruce,
As the client’s attorney, I realize that your job is to represent the client and not to handle their public (or private) relationships. But I’m curious as to how you’d advise these men to act outside of court if they were your clients. A friend of theirs has been stabbed to death in their house. The police think one of them did it. They’ve been tried and found not guilty of multiple charges, but the judge made it fairly clear that she thought at least one of them was involved. They know from experience that some of their friends think they’re involved and are relaying what they say to law enforcement. They’re now being sued by the victim’s ex-wife. What, if anything, should they say to their friends and family? Should they not talk about the case at all? Or should they continue to say that they’re innocent, with the knowledge that this is largely what got them charged the last time around? If they wanted to hold a press conference to publicly proclaim their innocence, would you advise against it?
Hi Bill O:
Interesting questions! Unfortunately, I don’t really feel qualified to answer. Frankly, while they can involve large sums of money, none of my trials have been what I would call “high profile,” in which the press or public would be interested in the case or my client.
And I don’t mean to sound frivolous here, but this civil case is a case for money, not where my client’s life or possible imprisonment is at stake. I would be interested in hearing from some of the lawyers/posters who have been involved in “high profile” criminal cases as to how they would answer your questions.
But I will say that if I were representing the Swann 3 in the civil case, I can tell you without question that I would strongly and most certainly advise them against holding a press conference proclaiming their “innocence,” as you put in your post. I might even consider quitting as their attorney if they insisted on doing it. I can’t see one darn positive thing that could come from that, and a lot of negatives come into mind, not the least the stirring of the press and public pot before selecting a jury for a civil trial.
There will be many on this blog that know of other examples of how the Swann 3 have acted in public, but in the few months I have been on here, I can only think of a couple:
(1) Dylan smiling as he left the court house after his and the others’ criminal aquittal;
(2) The anonymous report of Dylan being out for dinner at a restaurant with friends, appearing to have a good time;
(3) Just today the report (anonymous, so who knows if it is true)linked from another blog by a poster here, that Joe was seen Saturday night at a gay bar, drunk, dancing and having a good time; and
(4) Joe recently being seen at a Starbucks(?)or coming out of it in DC, where some posters legitimately wondered if he was wearing a suit (which might indicate if he was “lawyering” or not).
None of these things particlularly bother me, as a lawyer defending them. There is no pattern of repetitive embarassing behavior that I see. I would feel presumptuous to be their “nanny,” and they are all adult men, who seem to be intelligent and to have taken a very low profile. They are not the habitually wasted yet ever “fabulous” Ms. Lohan.
The civil allegations are very serious. It would be nice if they all spent some time in a nunnery or spent all their free time working at a soup kitchen, but that does not seem really reasonable. If they were to do so, at least half if not more of the public would think they were just grandstanding, or trying to suck up sympathy.
Based upon what I know, if I was their civil attorney I would not presume to tell them how to act in public, unless they asked me specifically to counsel them on that.
One exception: I think without request I would advise my client in the civil case to not talk about any details of the case with anyone, even friends and family, and if anyone asks, tell them that your attorney has given you strict instructions not to talk about the case, and if it is the press or someone you don’t know, give them my phone number.
Sorry I am not much help here. Would be very interested in how more qualified people on here would answer your questions.
Mr. Price was allegedly spotted at a local gay bar — drinking and dancing … at his age? Well, I for one cannot believe that rumor, although “there is no fool like an old fool.” I trust, Bruce, that he went home alone!
Like you, Clio, I was stunned. My first reaction was to shout out: “My Stars!”
Thanks, Bruce, for your comprehensive and thoughtful responses.