Court to Nix Dix Pix ?
We may have a clearer picture of the skirmish over the plaintiff’s motion to pull the defendants’ phone and email records from Verizon.
Judge Brook Hedge
The defense objected, citing privacy, and asked for all related documents to remain sealed. Yesterday, Judge Brook Hedge sided with the defense and ruled they will stay locked up “until further order by the Court.”
She then asked for something in return:
ORDERED that the parties should submit a public record filing discussing in general terms what is contained in the sealed materials such that the public record is complete, whenever a sealed filing is submitted.
So it appears there is more to come and the picture could get clearer still.
Hedge’s two-page order is cryptic and perhaps the larger issue may have to do less with phone records and more with email, specifically, attachments. The Judge makes special mention of those.
What could possibly be in any of those email attachments that is so sensitive? The order follows.
Law jocks may note Judge Hedge’s specific mention that the plaintiff’s request did not come in under Rule 34 (as opposed to Rule 28?). Hopefully they can explain this particular point to the larger audience.
Also, as our in-house counsel notes, Hedge may be inclined for these early motions and proceedings to be played out in public as much as possible:
“I read Judge Hedge’s order as saying that any time a party files a sealed document (or a motion to seal the document), they need to file at the same time a public filing that explains the nature of the filing they seek to protect.
I am hoping this means that Judge Hedge recognizes that there is a long tradition that parties who avail themselves of the public court system should expect they will have to do so publicly. If the parties want to do things under the radar, they should hire a mediator or arbitrator.”
We certainly hope as little information as possible gets nixed.
–posted by Craig
Ed Note: We had planned on screening Joe Price’s police interview from the night of Robert’s murder today. We’ll probably have that Thursday or Friday. News comes first.
Every court has rules. The DC Superior Court (which is hearing the civil case) uses the Superior Court Rules of Civil Procedure (the “DC Rules”). The DC Rules are patterned on the rules of civil procedure applies in the federal court system.
Judge Hedge notes Rule 34 in her order. Rule 34 of the DC Rules deals with a request from the party to another party for the production of “documents and things.” Under this rule, a party (for example, the Estate of Robert Wone) can ask another party (for example, Joe Price) to produce e-mails and phone records. Under Rule 34, the documents produced are not part of the documents filed with the court, unless and until there is some dispute the court needs to resolve.
There are other rules that deal with requests to individuals or companies that are not parties in the lawsuit, including Rule 28 and Rule 45. Rule 28 provides that a party can request a “commission” to take depositions and gather documents from a non-party outside the DC area. Rule 45 permits similar actions within 25 miles of DC.
Since the Verizon offices that handle subpoenas are not in DC, Covington filed its discovery request under Rule 28. It seems to me that Judge Hedge is implying that Covington should have sought the e-mails and phone records first from the defendants. (This assumes the defendants obtained the records in conjunction with the earlier criminal case.) This would make it easier for the defendants to raise various objections to production of the records.
Personally, even though it can be a bit of a hassle, I like to get business records directly from the business, especially if I suspect the party may not produce every document to which I am entitled, or, even worse, may alter the documents.
To illustrate, in a case, I requested a party to produce cancelled checks related to a transaction. The defendant produced the checks. For other reasons, I asked the defendant’s bank to produce the checks. When I compared what the defendant and the bank produced, I found the bank checks to be much more legible and found some of the checks did not include certain “memos” that were on the version produced by the defendants and others included information that was “whited out” on the version provided me by the defendant. The omissions and alterations made it clear the defendant was putting trust money into his personal account and then using it to purchase real estate in his name (when the defendant was not a beneficiary of the trust). While I am not suggesting this is the case here, it was one reason why lawyers like to go straight to the source.
Thanks C79, this helps. What happens if the plaintiffs try to get phone records from Sarah Morgan, Tom and John, Hixson or any of the other downstream players? I guess they need to make a relevancy claim first, but who would take the lead on brushing those requests back, the defendants’ legal team or counsel to whoever gets served? Or is none of that part of discovery here?
If these individuals are within 25 days of DC, it should be easy. The attorneys for the downstream players (or the players acting for themselves) would decide what to produce to the plaintiff. The plaintiff does not need to establish relevancy in the first instance, although I think it helps.
I don’t know what interest the attorneys for the defendants could assert over the production of documents by witnesses.
All of the documents conceivably are relevant, if limited by time or otherwise (for example, you could ask for phone records and e-mails related to communications from Robert Wone, Kathy Wone, the defendants, Michael Price, and other identified individuals during the 60-day period from July 1-August 31, 2006).
I mean miles, not days.
Ha, I was thinking that you were referencing arcane law referencing travel days by carriage and being very impressed.
Do you think, also, that Judge Hedge’s comments re: 28 vs. 34 also indicate a certain “irritation” she is feeling over a seeming lack of cooperation by the various parties?
I also wonder what kind of cooperation is going on among the various counsel defending the defendants.
I think there will be less cooperation here than there was in the criminal trial.
How may insurance companies are there??? Two?
(Yes, I know I could go look it up, but I’m tired, daggonnittt)
Deb, I believe we have two insurers and a daddy with deep pockets.
But … I presume Joe and Victor had one homeowner insurance policy since they co-owned the house. So why would there be two insurers involved? Next, I understood why each of the defendants should have his own legal representation; however, if there were one insurance company (as I’m presuming) for the house co-owners, is the insurance company obligated to provide each (J and V) with his own defense?
Further, something I recently read implied that each of the defendants (J and V) picked his own law firm, but I was under the earlier impression that the insurance company made that choice (cause they’re paying the bill to the law firms). Finally, if it’s true — as has been speculated on this blog — that Dylan has little to lose financially in the civil trial — why would his parents, who are presumably still underwriting his defense — continue to go all out (again) for his defense for the civil trial? Schertler is impressive, and he won’t have the learning curve of a new defense team.
But if Dylan has little to lose financially, why continue with the gold-plated defense? The profession of surgery is lucrative, but there IS a limit. Or might the rationale be that Dylan needs top-notch protection from slip ups that could open a murder case? Lots of questions.
One or more of them may have a pers liab policy. There is also quite likely an umbrella, which is sometimes written by another carrier.
For instance, I have a homeowners policy with one company and an auto policy with another. I have an umbrella policy written by my auto carrier — which also puts an umbrella over homeowners and personal liability.
Given the nature of the suit, both my homeowners and my umbrella would be on notice and would need to defend me up to limits.
Hi Gloria:
I can see three possible reasons why there would be separate counsel for the defendants in the civil case, even if it is the same insurance company involved:
(1) As a matter of defense strategy, although it is very expensive, it is better to have different attorneys each do opening statements, each do cross-examination of witnesses, and each give closing arguments;
(2) It may be deemed that there is a conflict between the defendants (or there could be one). If this were in my jurisdiction (Illinois), there would definitely be a conflict: the different insureds (the Swann 3) would have a right to have separate counsel, chosen by them each, the reasonable fees of which are to be paid by the insurer, because the different defendants would have a right of “contribution” against the other defendants.
Illinois has “contribution” rights, because in tort cases, joint liability is applied here. For instance, if the jury finds all three of the defendants liable, and splits their responsibility by 1/3 each, the plaintiff has the right here to collect the entire judgment from just one defendant (the one with the most money). The only relief for the one paying more than their (pro rata) 1/3rd share of the verdict is to have a contribution claim filed against the other defendants, to try to collect from them the amount over his 1/3rd share of the judgment that he has to pay due to joint liability. So each tort defendant has a right of contribution against the others. If you have one attorney, he will be filing a contribution claim by one of his clients against another client of his. Conflict!
(3) The reservations of rights may by themselves create a conflict. In Illinois, it does. When an insurer defends under a reservation of rights, the insured has a right to retain its own counsel, the reasonable fees to be paid by the carrier. The reasons for this conflict are complex, but a simple explanation is that an attorney hired by the insurance company is deemed to have two clients: the insured she is defending and the insurance company. If, due to the reservations of rights, that attorney could defend the case in a manner that could assist the insurance company as to its RORs (not that she will, but that she could), then there is a conflict, and the insureds have the right to hire their own attorneys to defend themselves, the reasonable fees of each to be paid by the carrier.
Nothing is simple is it? My congratulations to those who repressed that urge to go to law school.
Then there will likely be in-fighting on the D team . . .
So far, the defendants have presented a united front, filing a joint scheduling order and a joint opposition on the discovery motion.
Defense solidarity continues.
on the fore front
I do think Judge Hedge was expressing some irritation. She essentially was telling the parties they should try to work this stuff out among themselves. Judge Hedge also was showing the parties she would not let things get out of hand during the case (like a hockey ref calling fouls early before the game gets chippy).
Trouple’s privacy > trouple’s interest in finding Robert’s killer
I thought this is a wrongful death case and not an investigation in to who murdered Robert Wrong.
A wrongful death may be the result of an intentional act, a reckless act, or a negligent act. If one or more of the defendants murdered Robert Wone (or participated in related felony), they also may be found liable for his wrongful death.
In fact, even if a defendant (see O. J. Simpson) is acquitted of murder, the defendant may be liable for wrongful death since the legal standards applied to criminal and civil cases are different.
You need to wonder how much have the insurance companies looked into the circumstances. I wish we knew someone SIU for any of the carriers. Maybe I’ll sniff around on that.
I can only imagine they’ve at least ATTEMPTED to gather information showing that Mr. Wone’s murder was an intention act by one or more of the insureds.
I’d also love to find out where they’ve set their reserves. That would give a great indication on what their investigation has yielded.
Hi Deb:
Good luck trying to find out the insurance company’s reserves on this case. I hear its in a locked box in a safe in a vault in Vice President Gore’s love nest in San Francisco.
They hold that information so close that you would have to pry it out of their dead cold hands. But, saying that, again good luck!
Well, since I’d need to research the carriers and I’m so lazy . . .
I’m not sure $20 million would be material for the larger companies, especially if the insurer thinks a judgment is not likely to be covered under the terms of the policy.
I guess the Baltimore-based lawyers are less expensive. I spent a little time looking at some of Craig Roswell’s cases and he certainly is no stranger to filing a declaratory judgment action.
Again, what grounds for a DJ? That it hasn’t been filed says a thing or two.
I’d suspect limits reserves, but I’d love to know.
The rules really are set up so the insurance company has two duties: a duty to defend and to duty to provide insurance coverage under the terms of the policy. Since the plaintiff alleged “willful, reckless, and negligent,” the insurer has a duty to defend. Whether the insurance company is obligated to pay the judgment depends on the facts ultimately developed (or the terms of any settlement).
The attorneys for the defendants are provided under the duty to defend. It is not clear whether Victor and Joe have the same insurers and coverage, but since their paths may diverge at some point, it is prudent for them to have separate counsel.
Dylan may have a potential inheritance to protect.
All of the defendants may have some interest in avoiding a situation that results in further criminal charges.
Might Dylan’s “profession” require an insurance policy — malpractice? liability? (I’m thinking of his therapeutic massage profession here.) I don’t know if DC or Florida or wherever require licensure for that profession or can anyone “hang a virtual shingle”?
DC does license massage therapists. There does not appear to be a requirement that malpractice liability coverage be maintained.
I fully support any request you make for your wide-ranging research on this blog to count for your CLE requirements. Worth, oh, about ten years worth of CLE requirements!! And I support you for any teaching or mentoring award given by your professional association. After all, I’ll be earning my law degree here, online, for free.
Even if it were required, it would not likely cover his personal liability in this situation.
An insurer has no duty to defend a willful act.
True, but the complaint in the civil case alleges the act may have been “willful, reckless, or negligent.” The defendants may argue that all they did wrong was to leave a door unlocked and the alarm system off.
As a result, it falls within the “eight corners” rule.
Just sayin’ yo, if the trouple _really_ had nothing to do with the murder, I’m not sure how phone calls and e-mails could incriminate them any more. In fact, if they had _nothing to do with_ the murder, wouldn’t these communications help prove their innocence?
Who knows, maybe some 3rd party they came into contact with that night found out Robert was staying there and decided to ninja assassinate him. These phone/e-mail records could potentially discover Robert’s killer IMNSHO.
Editors-
I was never able to watch the last Dylan installment because it would freeze halfway through the video every time I tried to watch it. Can you make sure to post the Joe Price videos in short segments, like the Victor and first two Dylan videos?
Thanks!
La: We’ll try and do what we can with the Ward segment. This is how we got the source material – just as you see it. I also had some problems @ home with the stream and buffer but it ended up playing. We decided to host the raw footage ourselves rather than break them all up into ten minute segments for youtube.
Remember the crack A/V squads from junior high? I have a call into them now.
Youtube has upped the max video length to 15 minutes, if that means anything.
Since it seems to be a slow night, I thought I would discuss some of the “discovery” procedures likely to take place in the civil case as background for the non-lawyers (and those fortunate enough not to have been a plaintiff, defendant, or witness in a civil case).
The basic discovery tools are: depositions; production of documents; interrogatories; and requests for admissions.
Depositions are an out-of-court question and answer session between a witness and counsel for the parties. The witness may be one of the parties (plaintiff or defendant) or a third-party witness. The testimony is recorded by a court stenographer and then reduced to a transcript. A deposition usually occurs pursuant to a deposition subpoena, although the time and place of the deposition usually is agreed upon by counsel.
Production of documents (or things) is just as it sounds. You request a party to produce all documents (or things) related to a particular event or transaction. This is the category that e-mails and phone records fall into. It could also include things like a request for all photographs taken on the night of August 2, 2006.
Interrogatories are written questions posed to a party. In DC, you cannot request more than 35 interrogatories without getting approval from the judge. A common interrogatory question asks a party to identify all individuals or entities who are potential witnesses in the case.
Once some basic discovery is requested, a party can ask a party to make certain admissions. An admission is essentially a fact that a party is willing to stipulate.
A party or witness may refuse to provide requested discovery for many reasons. The party or witness may say the requested discovery is not relevant to the case or falls within a privilege (such as lawyer-client privilege or domestic partner privilege or even the privilege against self-incrimination). The Rules require parties to try to work out discovery disputes, but, if that fails, a motion to compel discovery can be filed and presented to the judge for decision.
When both the criminal case and the civil case were both pending, the defendants said they wanted to depose dozens of witnesses, including police officers and expert witnesses for the Government. It is not clear to me whether the DC Police Department will make the police officers available for depositions while an “active investigation” is pending. On the other hand, the defendants did not want to be subject to discovery, because criminal charges against them were pending (of which they now have been acquitted).
It is not clear what stance the defendants are taking now. However, the defendants requested only four months for discovery. Obviously, the Estate of Robert Wone wants to proceed with discovery. However, the Estate (as plaintiff) sought and obtained a longer discovery period. To me, the longer time frame is more realistic and more typical for a DC Superior Court case.
Thanks as always, Chilaw. I now know why I passed up law school for the ivory/ebony tower.
I do hope that the press does press for the most transparency allowed by the bar. Secrecy may have led to this tragedy, and secrecy has only placed “salt in the wound(s)” ever since. Brook must know that sunlight disinfects!
And the slow night just got slower . . .
I’m teasing Chilaw!
I do seriously doubt the police would show for deposition. They are notoriously bad about that. Additionally, as you point out, it is unlikely any of them still working the open murder case (not to mention any other possible charges) would decline on that basis.
There is more than a grain of truth in that, but I can’t help myself.
Like!
Chilaw:
Do we know whether the insurance company or companies, that may be paying the attorney fees bills for defense of the Swann 3 in the civil suit, have filed a Declaratory Judgment action against the Swann 3, to have a court decide whether the insurance companies have a duty to continue to pay to defend the Swann 3 and/or indemnify the Swann 3 for any judgment or settlement?
The reason I ask is that the defense only asked for 4 months of discovery, which is a pretty short period of time, and, as you note, not really realistic. Looks like the defense wants to push this to trial. If a DJ action has been filed or the insurance companies are threatening to stop payment of defense, it would be to the Swann 3’s benefit to try to get this trial over with more sooner than later, and before any court would decide the insurance companies’ duties.
I am actually dealing with this situation right now in one of my cases. In my jurisdiction, if an insurance company defends under reservations of rights (which we can be absolutely sure is happening with the Swann 3 if an insurance company is paying for the defense), the insurance company cannot try to recover what they have paid for defense from their insureds, even if a court later determines that the insurance company had no duty to defend and/or indemnify. This varies from jurisdiction to jurisdiction, and I have no idea if it is the same in DC.
I am defending a client right now where the insurance company is paying for the defense, but has raised a number of reasons under its policy (these are called “reservations of rights”) that it feels makes it so they shouldn’t have to defend or indemnify. In addition, the insurance company has filed a declaratory judgment action against my client, to try to get a court to say it has no obligation to pay for the defense and/or indemnify the client under the policy, thus stopping the payments by the insurance company. If the insurance company wins on the DJ action, my client, and not the insurance company, would be responsible for attorney fees to defend the case after the ruling.
Thus, in best representing my client, we are trying to see if the DJ action can go “slow” (which it is doing on its own accord, actually, without any help from us), delaying any such order by a judge in the DJ action, while the actual lawsuit in which my client has been sued for damages we are trying to make go “fast” (which has not been easy at all) so that my client does not have to pay any defense costs (being, essentially, my attorneys fees and expert fees), and the insurance company continues to pay those reasonable fees.
Sorry for my ignorance on this, and in particular if it has been discussed in previous posts, but has anyone done a defendants’ search of the court indexes around DC to see if the Swann 3, or any of them, are named as defendants in an insurance DJ action?
I am pretty familiar with insurance law in this respect, and will gladly do a future post on the insurance issues that may be involved with the civil case, if anyone is interested.
If a declaratory judgment action has been filed, the case is not in DC Superior Court. I could check to see if an action has been filed in federal court.
A post on the insurance issues might be interesting. I assume there is no coverage if a criminal act has been committed, but there would be coverage for a negligent act. I am not sure where a reckless act would fit in; I assume it would depend upon what the reckless act was.
There is a pretty standard “Commission of a Felony” exclusion, which falls under a broader intentional act exclusion.
But you need proof.
reckless falls in with negligent — except where punitives apply, but that typically only impacts taxes.
Intentional/willful/wanton is pretty much never “covered”.
I just don’t see how they could file a DJ.
Sure, they are likely investigating and defending under a(n) RoR, but I just don’t see that they would request DJ because there seems to be no basis.
If you chose to argue intentional act, you’d first need proof. Then you’d need proof of which of the insureds under the policy committed the intentional act and you’d only be able to D/D that or those insureds.
What is the definition of an insured under each of the policies in question?
I would assume they’ve already gone through all of the no-brainers — material misrep, notice, cooperation, etc.
I have almost zero doubt that they SI’d it, too.
I just can’t figure for what they might request a DJ because it would be a colossal waste of time.
I am getting lost in the acronyms:
DJ=Declaratory Judgment (a declaration of the rights and obligations of the insurer)
RofR=Reservation of Rights (the insurance company reserves its right to contest coverage)
SI=Self Insured (Not sure about this)
D/D=? (I have no clue about this)
Hi Deb:
You make a very good point about the unlikelihood of the insurance company(s) filing a DJ at this point.
However, there are a lot of unknowns, and I think it might be worthwhile checking the defendants’ indexes from time to time, to see if any of the Swann 3 have been named a defendant in any other cases.
While probabilities may be low, for instance, we don’t know all the “tricks” the insurance company may have up its sleeve with its Reservation of Rights (ROR) and all of the exclusions or provisions it may be relying upon for the ROR. Of course, we are concentrating on the most obvious — the intentional acts/criminal acts exclusions.
We don’t know if, under the insurance policy “cooperation clause,” whether the Swann 3 have given sworn statements to the insurance company (which would be privileged from disclosure to the plaintiffs in the civil case) and, if so, what they said.
We don’t know if the criminal judge’s findings of fact or decision might by somehow utilized as a sword by the insurance company against the Swann 3. The law seems to be evolving regarding looking outside the “four corners of the complaint” to determine coverage and insurance obligations, at least in my jurisdiction.
What we do know is that if the insurance company(s) is defending under a reservation of rights (which we all believe to be the case, with very good reason), they are now going to pay out hundreds of thousands of dollars, probably being closer to a million, in defense fees and costs (including expert fees) in the defense of the civil suit.
Thus, with the criminal case being over and the civil case being now on the front burner and turning very active, and with the impending crush of huge defense costs now being triggered, now might be a good time for the insurance company to file a DJ action, to try to get out of its defense obligations, if it is at all feasible.
You are absolutely correct, though, that it would be a useless and expensive exercise if the insurance company does not have the “goods” to win at this point.
The main policy provisions utilized in the ROR probably do apply to the “intentional/criminal acts” exclusions, and you appear (all those acronyms!) to be more in the know as to insurance practices generally, than I am.
What we can also be sure of is that the insurance company has had, and will have, a team of lawyers and analyists carefully reviewing everything going on as to the Swann 3, and would most certainly have at least one person at the civil trial, sitting in the gallery, and reporting daily to the insurance company of the testimony and evidence of the civil trial.
I don’t think insurance law in the District of Columbia is as clear cut as it is in Illinois.
Since it’s a slow night, I thought I’d let you all know that despite the collective and individual greatness of all of the Editors . . . Craig’s my favorite.
Thanks for always adding a little “smile” into your writing! T’was the “News comes first” that got me tonight!
Deb – I rarely post but ALL the Eds AND ALL posters here are great and I am a hugh fan. I follow this post from a journalistic angle as it is such a smooth and brilliant “investigative reporting.” As one of the Eds said “All The News That Fits … our Eds will Print” (twisted from NY Times slogan).
Now Denton makes me laugh!
Good timing, kid!
EDs? Please?
Nah, No worries Carolina. I was verbose last night.
Gosh, and I thought you were adding to the professional insights. Let”s see Mr. Monosyllabic add to the discussion.
Would it be safe to assume that the insurance companies would have already offered a settlement to make this go away?
I think if they had, even Bea in sunny California would have heard the snorts of derision coming from Covington.
“Court to Nix Dix Pix ?”
Oh yeah those e-mails probably have tons of dick pics. I guess I’d want my privacy too if that was the case…
Only if they were very small…uh, pix.