…and the Shortest Filing Ever, So Far.
We’re heading into the Thanksgiving holiday, and just in time comes something to be thankful for: the briefest filing we’ve yet seen in what looks like actual progress. Namely, and we quote in its entirety:
“Plaintiff Estate of Robert E. Wone, through its attorneys, submits this praecipe to withdraw its Motion to Compel Production of Third-Party Documents.
After the motion was filed on or about September 14, 2010, counsel for Plaintiff and Defendant Price continued to discuss the issues presented in the Motion, and Defendant Price agreed to produce many of the documents at issue. Now that Defendant Price has done so, there is no need for the Court to rule on the merits of Plaintiff’s motion.”
So that’s that, right? Perhaps not. We slice the turkey, so to speak, after the jump.
First off, this isn’t completely unexpected. Joe Price’s efforts to keep his many Arent Fox emails out of plaintiff’s hands never got much legal traction.
Last month his own attorneys signaled as much when they said a compromise was in the works, and that progress was being made to resolve the standoff. Still, the deal that was struck appears as if he caved to Covington demands.
However, beyond Joe’s copious Arent Fox emails, there were other questions as to documents that plaintiffs may want, and the defendants might be none to eager to turn over. Victor’s emails sent from his IDFA offices? Dylan’s from AB Data? Or any number of emails & documents produced by Joe and/or Dylan from Equality Virginia?
While it certainly appears Joe was headed for a defeat if Judge Hedge had ruled on this one matter, these others are a little fuzzier. And one wonders if the Protective Order covers the contents of these emails. Maybe they’ll never see the light of day.
Still, one must be thankful for the gifts one receives. And in turn, we shall keep this post as mercifully short as possible.
Praecipe of Withdrawl of Motion to Compel Production of Third Party Documents
Moving forward is progress.
But, continue to expect delays.
This case will start around New Year’s.
Mercifully short post: Looks like plaintiff’s counsel got all they wanted from the document requests. Wish we could see all these e-mails, etc.
Darn it! I am disappointed.
Ditto, Bruce.
Question re emails. Considering the trio are still under suspicion for Robert’s murder, and if further criminal charges were pressed against them, would their email communications after the trial be up for grabs?
Hi CD:
I just re-read the recent stipulated protective order. The only provisions for protection at the end of the civil case appear to be that the parties must: (1) return the “confidential” info to the person producing it; or (2) burn it (literally!).
As I read things here, the plaintiff’s attorney can not just hand over items designated as “confidential” to the police or federal agencies. The police or feds will have to do a subpoena for what documents they want, and then there will have to be a hearing where the judge here makes the decision as to whether the police or feds can get the stuff.
Under the stipulated protective order, I don’t think the plaintiff’s counsel can voluntarily give over to the police or feds any items designated as “confidential,” during or after the trial.
However, I do think that the police and feds, if they don’t already have all of these documents, can subpoena them through the criminal system, as a separate action from this civil action, in their criminal investigation, and the defendants may have to “give them up” in that way. Kiki may have a better handle on this, as she does criminal defense.
I agree, for the most part. Any documents would have to be subpoenaed, likely not from the plaintiff’s but from the original source, i.e. the employer, etc. Depending on the specific document there may be arguments to quash the subpoenas, but more likely if there is an argument over a specific document it would be about admissibility. The police and prosecutors have a lot of power to get the info they want.
Also keep in mind that since the defendants have not been charged, the proper vehicle for securing documents at this point is a warrant. The Subpoena only comes into play once there is a charge (with some exceptions).
Maybe I’m wrong but seem to recall that the USAO subpoenad a boatload of the three’s emails for the criminal trial, including plenty of Price’s from A-Fox. More than likely the plaintiff’s compelled production of the very same emails?
If additional criminal charges are brought, do those have to be produced again? Can’t the new prosecutor just get them from Kirscher, assuming they weren’t burned or returned?
If there is a new prosecution, there should be no issue with using what has already been subpoenaed during the previous prosecution. The only issue may be the “chain of custody,” which requires the party entering evidence to prove up that the evidence came from where they said it came from. But I am sure that the USAO has documented the chain of custody on all material evidence. So unless there is something the plaintiffs find that the cops and prosecutors did not, I cannot see there being any real need for the produced documents.
I doubt there’s anything in this production that the USAO hasn’t seen. It’s not a difficult task to ‘re-get’ them if there are new charges.
KiKi, would there have been any reason why the USAO in the prior criminal trial would have NOT been able to hand over the entirety of their files to Plaintiffs (unless the Judge put certain materials under ‘Seal’ – which I don’t recall)? That’s assuming the USAO wanted to do so.
If the documents are not under seal I cannot think of any reason they could not be turned over to really, anybody, as far as the criminal charges go. There may be some issues of admissibility when it comes to the plaintiff’s trying to introduce those docs, but I do not have a grasp on the civil particulars of admissibility. But, it is my opinion that if the documents are not under seal than there would be no reason they could not release them.
That being said, if I was a defense attorney whose client was being tried civilly and the prosecutor provided unsolicited assistance to the plaintiff, you can bet I would have my recusal motion ready by the initial appearance.
KiKi,
New legal term for a reader re: “Recusal Motion.” Could you please brief on this motion? It has to have a “conflict of interests” of some sort or to “disqualify” of something in order to file this motion, right?
Hi Kiki, Denton:
Yes, as a civil law guy, the only “recusal” motion I know of has to do with asking for the judge to leave the case for a “conflict” or other issue. Is that different in criminal law?
Bruce,
Thanks for a brief “brief.”
While waiting for crim law’s answer, it sounds like this is not a “popular motion?” I have hardly seen or heard of in my litigation support work that I do.
I was wondering if anything post-criminal trial could be subpoenaed.
can we really be so sure that a compromise or concession is a “cave in”? seems a bit extreme to me, a bit like the “go team!” attitude we had in the crim trial. lot of good that did us. as far as any of us really knows, especially given the crim case, there is no there there. maybe mr. joe was just playing hard to get…
That might be a good point, Dieter. Who knows if the prosecution didn’t make some concessions of their own.
Perhaps, but what possible bargaining chips does the defense hold? And more broadly, beyond foot-dragging on discovery, what positions of power does the defense generally have in civil cases?
Maybe the compromise was dependent on the Protective Order and that none of the emails get a wide release? Razi was willing to get ‘some but not all’ emails to speed the process along?
Provided these attorneys are on the up and up, and I assume they are (note: JP can’t run the show at the expense of costing his counsel’s law license) then I would expect the ‘itemization’ of all attorney client privileged and other defenses as to confidential emails holds the key. IF there’s a battle here, it will be over whether the particular email is subject to being discovered – the earlier battles may have been just Joe having too much time on his hands and wanting to make things difficult, thus the compromise.
What makes me pleased in this matter is that it wasn’t Price who had to disclose – it was Arent Fox – so there were no emails which ‘happened not to be included’ for whatever reason.
That said, all the emails will likely provide are information about former tricks and that sort of thing – cannot imagine that any of them were stupid enough to email each other anything untoward after the murder (and likely whatever Joe DID email over which he claimed privilege was also likely self-motivated and paints him in a good light; he’s nothing if not shrewd, his off the cuff performance at Anacostia notwithstanding).
Based on the Price emails that the Government discovered for the criminal we can be certain there are no smoking guns among them, so the question remains – what’s in there that might help the plaintiff stitch together their case?
How might Razi and Regan use a record of assignations, if that proves to be the content, to move the wronfgul death ball forward, or is the initial goal to discover everything and see what leads materialize?
If these emails are not classified and do not compromise national security, then they should be released to posterity to give a glimpse into gay male culture of the early twenty-first century. I would love to help to digitize some of the documents, perhaps, for an online reader for graduate students in LGBTQ studies.
As for the case, the emails need to be closely read for coded euphemisms and implicit meanings. The gun may not be smoking, but it may be still there.
Clio says: “need to be closely red for coded euphemisms….”
Agree. Joe thinks he’s “above the law,” as his office behavior denotes. It’s common knowledge that keeping porn on a work computer is a no-no. So why wouldn’t he think he’s smart enough to out-think investigators by sending messages with language that only the recipient would understand.
I do it with my partner. She’s interested in finding a new job. I send her emails at work about “real estate.” “This is a nice house. What do you think?”
While I agree that there’s no “smoking gun” in the e-mails, I suspect that there’s plenty of useful information there. For example, we now know that Joe wanted to get Victor into therapy after the murder. Did he? If so, who was his therapist? I’m sure their conversations were privileged, but would Victor be willing to waive the privilege? I’m fairly certain the answer to that last question would be a resounding “No”, but it would be useful for the plaintiffs to make him say it in open court.
Dieter (and also Bruce above):
If the emails are innocuous, I’d think the defense would want to see them released, assuming there are no genuine Arent Fox attorney-client privilege issues, to demonstrate, as you say, that “there is no there there.”
If they are damaging, we’ll never see them.
My question on these emails has always been: If they do nothing to implicate you, why fight having them released. Have the information such as SSNs and such redacted and then make a point of saying, “Nothing to see here! Move along!”
I will respond to Bruce and Denton here since it is getting slim up top.
A Recusal Motion, in all criminal jurisdictions where I have practiced, is used to ask the judge or prosecutor to step off the case. There are different reasons you could use to support the recusal motion, conflict of interest, impropriety or appearance of impropriety, even a judge or prosecutor’s particular comments toward or about a defendant or his/her attorney. Some of us attorneys use recusal motions more than others. The point I was making above was that if a prosecutor was giving info to a plaintiff’s attorney, I think the defendant could make the argument that the prosecutor was taking a personal interest in his civil suit, which is beyond the prosecutor’s purview, and thus has at least shown the appearance of impropriety.
Thanks, Kiki. That explains it well. There’s nothing in the civil arena similar to an attempt to knock out a prosecutor. The only use of “recusal” in civil that I am familiar with is as to asking the judge to leave the case. Your explanation that in the criminal world it can be used to ask the same of the prosecutor makes imminent sense.
KiKi and Bruce,
Wow! Big deal Motion, indeed. I hope no one screws up the proceedings that a party has to file this motion. It doesn’t look good when it gets to that point. Thanks much K & B.
I wonder if this is really applicable under these circumstances – since the criminal trial is over, it would seem the prosecutor could hand over to Plaintiff anything that wasn’t under seal.
If there’s any way the civil trial shakes loose anything that might help the prosecutor’s office (not necessarily the same prosecutor) bring murder charges (against these defendants or someone else) then they’re likely going to keep an eye on it.
Frankly, in having to meet with Kathy Wone during the investigation/trial, and seeing her in the courtroom day in and day out, I’m sure the prosecutors involved in the prior case (especially given the Judge’s opinion) do have a great deal of sympathy for her and want the proper parties to pay for murdering her husband, whether or not these defendants are among such parties.
I agree Bea, that they ‘can’ turn over any info they want to the prosecutor. And I am sure the prosecutor does feel sympathy to Ms. Wone, as anyone would. I also agree that they should definitely be keeping an eye on the civil trial for any new information.
However, I am saying that if I was the defense attorney and the prosecutor seemed to be assisting a plaintiff’s attorney in a civil case against my client, I would certainly consider moving to recuse that prosecutor using the argument that the prosecutor’s assistance in the civil case demonstrates a personal interest in the case that goes above the normal duties of a prosecutor.
And as such shows the appearance of impropriety and thus warrants recusal. Without having an actual situation and working off a somewhat broad hypothetical it is hard to say whether there is any meat to such a motion.
I assume you mean from any later criminal trial? I would agree with that if there was ongoing association but not just handing over a file of unsealed documents.