But Who’s Being Protected…And From What?
It’s rare in this case for any matter not to provoke a legal fight. We imagine more than one luxury vacation has been financed by challenges and filings and such on both sides of the courtroom.
Thus it was something of a surprise to see late last week Judge Brook Hedge reveive a Stipulated Protective Order that both plaintiff and defendants have agreed upon…although as we learned, perhaps it wasn’t so much of a surprise after all.
This may be all agreeable to all parties in the lawsuit, but it may not be so hot for those still wanting to learn more about the events surrounding Robert’s murder.
Who’s being protected from what, and what this means for the continuing coverage of this case, after the jump.
The Stipulated Protective Order lays out the process by which a party, through counsel, can ask that any official material produced around this case be declared to contain “confidential information.” If the bench agrees, said material becomes protected and unavailable to the public.
What material is covered?
“…any written, typed, or printed matter of any kind, computer print-outs, sound recordings, email, electronic data, photographs, or any other media for preparing, duplicating, or recording information.”
And just what constitutes confidential? Paragraph 4 lays out 8 categories, including
“…financial or tax information …medical information …psychological or mental health information…personal identification information…employment …academic records…property addresses (excluding 1509 Swann Street),” or finally “Any document that a Party believes the disclosure of which would cause undue embarrassment or an intrusion upon personal privacies.”
Which pretty much covers the waterfront.
Attorneys we’ve spoken with say that such an order is really no surprise, and in fact fairly standard in civil cases such as this. (When, we wonder, has there been a civil case like this…but that’s for another time.)
Although temporarily frustrating, there is comfort in knowing this is nothing like the criminal trial battles over what material could actually enter trial. Those battles, although in the offing, will be rather different for the civil case.
No, here the chefs in the legal kitchen just don’t want anybody poking into whatever they’re cooking up. So for the time being, we leave the parties with their privacy intact.
At least, when it comes to the official materials.
Plaintiff’s Consent Motion for Entry of Stipulated Protective Order
Doug,
Thanks for putting it up. I saw it last week but could not locate the actual document.
denton
Thanks Denton…but no worries. We’ve got instant access to the docs. Cheers
-Doug, co-editor
somehow i doubt it is the defense team feeding you the docs…
But if it’s something the trio themselves puts on the internet, seems fair game to me….Dylan. And frankly, the crumbs THEY leave are more interesting to the general public than any document published by the court.
could it be something related to the firm Price worked at
but again if it is posted on the internet, then fair game
Question……..this would in no way effect any documents published by any government agency other than the DC courts, correct? (i.e., FL, MD, DC, VA real estate records, licensure, registration of websites, etc.)
CD, this means that if Defendants produce something in a document request or answer an interrogatory marked CONFIDENTIAL -SUBJECT TO PROTECTIVE ORDER then Plaintiff looks it over to see if it fits within the framework of the order. If so, they cannot disclose it to the press/elsewhere except within the proceeding.
The rest of us can dig up whatever we want that is out there to find (legally, of course).
I’ve only looked this over once very quickly.
Does not appear to apply to Motions or Briefs on Motions, unless of course they attach or refer to covered documents, and then only those specific items should be protected from public view.
CD, I think the order would cover the records you refer to in your post, if they are designated as covered documents.
This order certainly does not stop us or any news agency or whatever to find whatever they can find as to any of the parties, through public websites, etc.
This stipulated order, if entered, which it probably will be as both sides agree, is not good for us, depending upon how much material and what material filed with the court is determined to be covered items.
For the same reasons that the intervenors came in to support open access and no “gag order,” it would appear at first blush that they may want to intervene as to this motion also.
In my view, it comes down to what can the parties in the case hide from the public? As to the “gag order” motion, it goes to what the attorneys can say. As to this stipulated motion, it goes to what the public can view from court filings and discovery responses and depositions.
The right of the press and public seems to be implicated equally as to both. In my opinion.
There is no reason for the public to be privy to personal identification information, financial records, medical records etc. This is all run of the mill privacy stuff and it is correct for the parties to agree to protection for same. This will hopefully induce the parties to be more forthcoming during discovery.
Let’s not overlook the fact that this cuts both ways — Kathy may have reasons for agreeing to this just as do the defendants. It should help maintain decency and professionalism all around. Anything relevant that is turned up will surely be disclosed at trial — we observers don’t necessarily have a right to it before then. I’m not sure anyone pursuing a motion to intervene will have much luck.
However, Paragraph 4(h) could be a source of much mischief. Hopefully, the parties will utilize their ability to contest the designation of material as “confidential,” particularly with regard to information that is already public or as to which “embarrassment” might be claimed a bit too broadly.
Agree, Hoya – assume Covington will keep a close look on what 4(h) claims are made. I agree that none of us needs to know Dylan’s Social Security Number but if any of the ‘tricks’ get deposed and any bombshells drop, this Protective Order would not seem to keep the public in the dark.
What non-lawyers need to remember, though, is that discovery, including depositions, are not “filed” with the Court and are not ‘available’ for our good Eds. to get a copy of, at least not until trial (and then only under some circumstances) – the question will be will there be other ways to disseminate information which is very probative of what happened that terrible night.
I recall that when OJ Simpson was deposed that there were news reports on what he said – I doubt it will go that far in this case (and besides, not much news to hear repeated assertions of the 5th).
Bea and Bruce: precisely. No-one can fuss about releasing Social Security numbers, but it’s the “any other document…” that opens the doors. Still, it’s not a given if the other side challenges, and the asserting party has to make their case to Judge Hedge.
-Doug, co-editor
If Plaintiff/Covington WANTS to challenge the marking by Defense of “embarrassing” confidential info, it will be interesting. If there is no Gag Order, then it may well end up in having deposition transcripts given to the press. Recall that OJ Simpson’s civil deposition was reported in real time – am not saying it would necessarily be allowed here (don’t know DC courts like I do California courts) but it’s not unheard of. That’s what I’m hoping for – public’s right to know things which are not in the nature of HIV status, SSNs, and the like which are, genuinely, personal.
agree–ss#/tax statements don’t belong in the public domain
What about calf and hip measurements, though? LOL! Where does one draw the line on what should be private?
Hi Hoya:
Agree with all you say, including as to pursuing a motion to intervene. Agree wholeheartedly we don’t need to see much information likely to be covered documents, including identification numbers, embarrasing personal information, etc.
But, most of the info in this case will probably come from depositions. Neither side is likely interested in making such deposition info available to the public, and the fact that both sides agreed together for this motion indicates that both sides may do some back scratching in this regard for each other.
It may very well be that the parties designate all depositions as covered documents.
Does the press have the right to see those documents and report (if they can get their hands on them) regarding them before the trial itself? Maybe not. Maybe so. I’m sure the press would argue that withholding that material, even for a year or more until trial, is an unconstitutional restraint upon the press.
So, who represents the public here and the rights of the press, when it comes to designating deposition transcripts as covered documents, and keeping documents from the press and public? The parties? Not really. The judge? Probably not, in my opinion. She is mostly going to be looking out for having an orderly case and an orderly trial, and not necessarily looking out for the rights of the press or public to see the covered documents under the stipulated order.
Just saying.
Hoya – Now you have me wondering about 4(h) regarding a disclosure “which could cause undue embarrassment or an intrustion upon personal privacies.” I guess this is deliberately vague for a reason.
Say another person comes forward, and is deposed, who says they engaged in S&M activities, maybe including restraint, with Price and/or Ward, like an alt dot com hookup. Since the defendants’ proclivities and interests are already known and are in the public sphere, can the defense legitimately argue that anything new surfacing in the sex category “would cause undue embarrassment?”
And this is obviously a done deal, Hedge signed. Order Granting Consent Motion For Entry Of Stipulated Protective Order signed by Judge Hedge efiled, eserved and docketed 11/15/2010. (ph). Copies of the order deposited in the court’s mail to the pro se parties 11/15/2010.
Craig:
I think you are following my train of thought pretty well. Arguably, 4(h) could cover everything from sex proclivities to unfortunate greeting cards. What could be worse than what is already out there?
If I were on the opposing side, I would certainly argue “nothing new here,” but will it fly?
I agree – I suspect but don’t know (obviously) that she may say “Protective Orders” are for specific purposes, so long as “it” is probative and not ONLY embarrassing to defendants.
Hoya, in CA back when OJ Simpson was deposed in the civil trial, the media got the transcripts right away, and, if memory serves, the Goldman’s counsel spoke freely about what OJ said in testimony. Any idea how the DC courts treat such things – as a ‘fer example’ were there high profile civil trials in which this sort of thing came out prior to trial?
in that sceanario–that should be public because it pertains directly to the case/theories of what may have happened that night as opposed to phone numbers/taxes/ss#. oh with the Ken and Barbie case, Karla in the movie called her man her Prince who she would do anything including offering her sister for her true love who subsequently died from amateur technique of knocking out.
Poor Victor, IMHO he saw Price as his blond prince,/ his knight in shining armor and his one true love whose wishes had to be fullfilled–anything for his shining blond Prince who swept him off his feet for they would eternally be together for fate made their paths cross for more than 15 minutes.
Noah:
As to your last paragraph. To me, doesn’t quite fit with the smarmy jowly photo of JP that goes with the previous article “Big Sur 11/11/10,” but heck, different strokes for different folks, I guess.
Victor had to see him as his king and he would be his loyal subject to the blond knight for how else can we explain that he would allow VP to have his occasional piece live with them under 1 roof–luv is blind but the law hopefully will be just
agree though that the years have not been kind to JP but what does Victor see
My God, Noah:
Don’t you know this blog is all about punctuation! Have you gone mad? 🙂
No periods at the end of your posts?
What What What???? That just won’t do.
“…luv is blind but the law hopefully will be just….” Just what, for Lucifer’s Sake?
Heavens to Mergatroid!
“…but what does Victor see….” My God, what does he see? Left Boot, Nevada????
Love,
Grammar Nanny
Finally, I can agree with Bruce on something — please proof your posts, people! Cheers, Emily Post.
Noah, I so agree – what WON’T Victor put up with? Joe is not aging well (Victor, by comparison, is) and yet he’s already been reported here as canoodling in public with yet another new boy. (Can only imagine what boy could overlook the ‘Swann problem’ but that’s me.)
I suppose the only (blech) answer is that Victor is blinded by love. . .
hon–luv can make you do a lot. didn’t someone marry a menendez guy. but JOE–the years have not been kind.
Some woman did marry one of the Menendez brothers. I think the Night Stalker got himself a bride as well.
Okay, Joe wasn’t convicted of anything (yet – and may not even be guilty of murder) BUT for Victor to put up with all this life turmoil, to lose friends, his home, to have everyone he knows “know” (quotes here are italics) that (1) Joe had a live-in mistress; (2) Joe had a work computer full of photos of being Dylan’s big bottom; (3) that Joe was trolling for tricks on the web; (4) that Joe called Dyl, not Vic, the “love of his life.” If this wasn’t demeaning enough, if the trial hadn’t served up this public spectacle for Victor’s grandma and for his son to read later, Joe didn’t seem to mend his ways since he’s been seen making out with a NEW boy in public!
Now that Joe doesn’t have the power job, the gorgeous home, the crown of the legal gay rights warrior, nor the (public) persona of Victor’s dutiful and loyal husband, what keeps Victor around? Joking aside, the looks Joe DID have in his early-mid 30s are gone. I don’t know if he’s gained a lot of weight or if all of it settled in his collection of chins and jowls, but he is not a good looking man (granted, I am a dyke and may not be qualified).
Now that Victor is the bread-winner AND the better-looking one AND has the aunt housing them, how Joe hasn’t been kicked to the curb I don’t know. If Victor struck a deal with Kathy Wone to tell her the complete truth, he’d get his life back, not to mention his self-respect. My guess is that Kathy Wone would absolve him of any civil liability. Provided he wasn’t the one to wield the knife, prosecutors would very likely offer immunity to testify in the trial(s) of the proper parties).
I suppose Victor’s finances are tied with Joe’s as to real estate, but I doubt there’s any equity in the Florida house.
But Victor chooses to sit at Aunt Marcia’s home watching “Project Runway” while Joe hits the bars. Wonder if he gives him dollar bills for the go-go boys.
The public revelation of Price’s “love of my life” pronouncement to Ward should have let any intelligent spouse know that he has already been kicked to the curb. As a result of the trial, the whole city knows that Price turned Zaborsky into his doormat. One would think that would be enough to get Zaborsky to finally stand on his own two feet and say, “Enough! Get out of my life.” Does he not have even an ounce of self-respect?
Depending on the actual circumstances of what happened that night and as of now, undetermined culpability, could Vic be less motivated by love and more by survival instincts? And if that’s the case, could Price still hold those keys, with regards to the legal predicaments – the civil and possible criminal proceedings yet to come?
That could be real motivation.
They are the fathers of two boys who are brothers. That is a bond that has to carry weight.
Hoya,
Also submitted on 11/12/10 was:
Praecipe Concerning Consent Extension to File Opposition to Motion to Intervene Filed. Submitted 11/12/2010 12:43 jhc. Attorney: BYERS, Ms LARISSA N (472431) VICTOR ZABORSKY (Defendant);
The record only showed Victor’s attorney who submitted this document.
Re: Hoya, “… we observers don’t necessarily have a right to it before then. I’m not sure anyone pursuing a motion to intervene will have much luck.” et al.
It sounds to me that the defendants will oppose the “Motion to Intervene” as you have mentioned.
Thanks, Hoya, OR any legal beagles for your comments.
It sounds to me that the defendants are opposing the “Motion to Intervene.” (period)
We’ve known about this for nearly a week and will post their opposition when it becomes public.
Thanks, Craig, for the heads-up. The legal kitchen is quite cooking up, indeed. /d.
Craig; So, signed by the judge, sealed and delivered today; done deal. Not such a big deal though inasmuch as – has been said before – depo transcripts, answers to interrogatories, and like documents that contain (hopefully) evidentiary materials don’t go anywhere except to the various counsels files until the trial (that is are not filed with the Clerk’s office) unless there is a need to have a judge’s ruling on a dispute about the need to answer, etc.
However, such filings as witness lists, lay- and expert-witness designations, and the like, are seemingly not covered by the stip and ought not be protected. They should enlighten us; also the names of those persons deposed.
What is the likelihood plaintiffs will end up challenging a confidentiality designation of something produced by defendants? Is this the sort of thing that could be parried back and forth in a blackmail kind of way (you challenge us on this, we’ll challenge you on that?) And how common is this type of protective order?
Thanks (to any/all attorney/s who answer).
Hi Susan, I wouldn’t call it blackmail but often there is some tit-for-tat about SOME things though perhaps not this. I seriously doubt there will be nearly as many ’embarrassing’ things for Kathy Wone as the collective behaviors of the defendants may disclose.
And the notion of ’embarrassed’ is a funny threshold for these guys: after the public disclosure of the arrest warrant affidavit and the criminal trial, one might think them blush-proof.
The think sparkly cat was probably their greatest source of embarrassment. hehe
Or a photo of Dyl, knee deep in a vat of handsome Asian gentlemen.
Thanks, Bea. I can’t help but think that there’s room for more “embarrassment,” for the defendants, whatever the threshold for that might be.
There could be a Confederate or two in the genealogical attics of the Brothers Price, but I think that the Culuket ad plus the workplace photos have to be the most embarrassing artifacts out there. Let us pray that those photos never see the light of day!!
So, barring a revival of eyecandy.dvds or of Uncle Michael’s maudlin Manhunt, there cannot be any more proverbial skeletons coming out of the closet — other than overdue confessions about what really happened that evening.
Hi Clio,
I’m of the mind that there could always be more “toys” in the attic (along with the confeds). And someone on this site posted that he/she heard they kept another place in Silver Spring. Perhaps things were also stored in the basement or with S. Morg.
I’m still hoping someone kept the memory cards from the digital cameras!
Bea, I truly hope that S. Morgan is questioned about the cameras, and about cell phone cameras, online photo storage accounts, etc.
They should question the troup’ too. See if they plead the 5th on that as well.
Susan: I would guess that there’s not going to be a great deal of challenging confidential designations. It was obviously defendants’ idea, but the parties agreed on entering the protective order; it’s going to be “you agree with us and we’ll agree with you on what’s confidential” so long as you fully divulge the information to us.
It’s only the public (us) who are adversely affected. Nothing is withheld from the parties or their attorneys. It may even have the positive affect of inducing the parties (especially the defendants) to be more forthright. How common? Not sure. Bruce will answer that!
Thanks, Boofoc.
“Embarrassment” is in the eye/ear of the beholder. I don’t have one-tenth of one-tenth of the “toys” in my closet as Dylan does (did !), but I would not welcome random questions about them, their functions, with whom, whatever…………….for the world to ponder. I suspect questions such as these might be asked, and might – with the proper foundations laid – be sustained, but, with the parties’ agreement (and the judge’s order thereon) in place, we will not be allowed to see the answers, though we ought to be able to learn the questions. Guess we’ll see.
i’m sure eric holder is relieved about this. his deposition is gonna be fun, fun, fun…though it’s not like that guy needs any more heat. that said, will we ever know what he says/said now??? come to think of it, could the swann st. trio be tried in guantanamo bay??? I imagine that would be one of the ways to settle the score…
Clever. Did you work on that all night?
I think he’s a natural. It’s a gift.
No and no, dieter. An all-gay-male Sanhedrin should be summoned in Key West, though, to do a close reading (translation — a very public and painful roast) of all of the three defendants. It could be a fundraiser for the Wone Trust, but there would be absolutely no waterboarding or torture — Culuket probably would enjoy that too much, from his last ad!
Susan,
This is in response to: “They are the fathers of two boys who are brothers. That is a bond that has to carry weight.” (It’s too narrow for replies.)
In a committed partnership between two men, I agree that a bond like that would carry weight, but that doesn’t seem to be what we have in this instance.
When you look at the William and Mary tape with the knowledge of what was really happening in that household, it’s clear that we’re looking at a performance artist. Did Price father a child as more of his performance art? I don’t see fatherhood carrying any weight with him in the same way that his legal partnership with Zaborsky seems to carry no weight.
My comment was in response to why VZ might have allegiance to JP. Pressure might exist to protect the sons and their relationship with each other. I wouldn’t doubt fatherhood means something to both guys. They made a conscious decision to participate in creating bio. children.
I agree with both of you, Susan and Bill, that for normal people there is a very natural bond there. Bill’s right that whatever Victor feels about it, Joe may well have liked just getting his picture in the paper and ‘the idea’ of having a son. Victor’s anniversary card to Joe spoke of ‘this family’ (mentioning everyone but Dylan) and I’m sure he was grabbing at anything to seal that bond – BUT that was before the murder, the criminal trial, and this trial, when he was a respected member of the community even if Joe cheated on the side.
He’d put up with the mistress in the home, but the tornado hadn’t hit yet. Why he’s staying NOW, what with Joe keeping up his old ways with the new boy, and Joe’s no longer a celebrated gay rights lawyer, or a making money hand over fist, now that their posh home is gone, and a good number of their friends? A good part of his dignity has been drained, to be sure, but why not get a good part of it back by telling the truth?
Of course I could be wrong about how much he participated in before the murder – and maybe Joe has no guilt other than NOT telling all that he knows, but I can’t help but think Joe’s the one who dragged him through the mud. Did Victor’s family and closest friends drink the Joe Kool-Aid too or have they decided he’s adrift for good?
Hi Susan, Bill & Bea:
Do we have any evidence relating to J and V’s relationship with their biological children since the murder, i.e., whether they regularly see their children, whether they pay any type of monetary support, whether they are involved in any in the up-bringing or instruction of the children?