District Title v. Warren
District Title v. Warren
Opinion of the Court
MEMORANDUM OPINION AND ORDER
Plaintiff District Title, a real estate settlement company, was handling the sale of
Oh March 22, 2016, plaintiff filed a motion to conduct post-judgment discovery related to its efforts to collect on the judgment; it sought to depose Day,
The Court referred the motion to a Magistrate Judge pursuant to Local Civil Rule 72.2(a). Order (Apr. 5, 2016) [Dkt. # 90]. Thereafter, the Court referred another post-judgment discovery matter to the same Magistrate Judge. See Order (June 29, 2016) [Dkt. #95] (referring plaintiffs motion for the issuance of Letters Rogatory to the Auckland High Court in Auckland, New Zealand); Mem. Op. & Order [Dkt. # 104] (granting the motion for the issuance of Letters Rogatory).
On April- 21, 2017, plaintiff moved for an order to show cause- as to why LeFande should not be held in contempt, and it renewed its request for leave to issue a subpoena to LeFande. PL’s Mot. to Show Cause Why Timothy Day’s Counsel Should Not be Held in Contempt & Renewed Request for Issuance of Subpoena to Matthew LeFande [Dkt. #107] (“PL’s Mot.’). In support of its motion, plaintiff pointed to testimony in a related proceeding in a Maryland state court that LeFande was complicit in the concealment of defendant Day’s assets. PL’s Mem. óf P. & A. in Supp. of PL’s Mot. [Dkt. # 107-1] (“PL’s Mem.”) at 3. -Plaintiff proffers that Day transferred over $80,000 in profits received from a NoVember 2014 sale of property in St. Mary’s County, Maryland to an account in New Zealand. Id. At a trial related to the St. Mary’s County transaction, a witness testified that it was Day’s attorney, Matthew LeFande, who instructed the settlement company to transfer the funds to the New Zealand account. Id. .
LeFande opposed the motion and sought a protective order. Opp. to PL’s Mot. & Request for Protective Order [Dkt. # 108] (“LeFande’s Opp.”). In his opposition, Le-Fande asserted his Fifth Amendment right against self-incrimination, and he also asserted that any testimony would be covered by the attorney-client privilege. Id.
STANDARD OF REVIEW
Local Civil Rule 72.2(a) permits a district court to refer “any pretrial motion or matter,” with the exception of certain motions and petitions set forth in Local Civil Rule 72.3, to a Magistrate Judge. Baylor v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 945 (D.C. Cir. 2017), quoting LCvR 72.2(a).
ANALYSIS
LeFande challenges the Magistrate Judge’s ruling on two grounds: first, he argues that any testimony that would be sought from him would be protected by the Fifth Amendment privilege against self-incrimination, and second, he contends that any testimony would be protected by attorney-client privilege. Because LeFande cannot assert these privileges to bar all questioning, the Court will overrule the objections.
I. LeFande must assert the self-incrimination privilege on a question-by-question basis.
. LeFande argued before the Magistrate Judge that he would refuse to. answer any questions about the St. Mary’s. County transaction, and he cited his Fifth Amendment privilege against self-incrimination. LeFande’s Opp. at 7. The Magistrate Judge concluded that LeFande’s blanket assertion of the self-incrimination privilege was premature. The Magistrate Judge held:
[N]o authority supports the proposition that the threat by a witness to claim such privileges is a basis upon which to _ preclude the issuance of a subpoena. Rather, the applicable authorities require that claims of such privileges be made in response to a specific question or questions actually posed, or specific documents actually requested.
Magistrate Judge’s Opinion at 8-9. While LeFande asserts that “there are no questions the attorney will answer without asserting the [Fifth Amendment] privilege,” LeFande Obj. at 9, he does not argue that the Magistrate Judge erred in any way. Because the Court agrees with the Magistrate Judge’s conclusion, LeFande’s objection "will be overruled.
The Fifth Amendment protects a person from being “compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The privilege “can be asserted in any proceeding, civil or criminal ... and it protects any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The privilege may be invoked whenever a witness reasonably believes that his testimony could “furnish a link in the chain of evidence needed to prosecute” him for a crime. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). But the danger of self-incrimination must be real, not remote or speculative. Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). So, as the Supreme Court held more than sixty years ago, “[a]s to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a real danger of ... [in-]erimination.” Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 95 L.Ed. 344 (1951).
Because a witness must have a reasonable belief that a disclosure could be used in a subsequent criminal proceeding, “[t]here is a presumption against blanket
So LeFande must sit for the deposition, and while he may assert the Fifth Amendment privilege in response to particular questions as appropriate, he must answer questions with the understanding that the danger of self-incrimination must be real, not remote or speculative. Zicarelli, 406 U.S. at 478, 92 S.Ct. 1670.
II. LeFande must assert the attorney-client privilege on a question-by-question basis.
LeFande argued before the Magistrate Judge that plaintiffs allegations of wrongdoing “cannot overcome any privilege in the communications between this attorney and either Defendant.” LeFande’s Opp. at 11. The Magistrate Judge rejected this blanket assertion of attorney-client privilege. Magistrate Judge’s Opinion at 8-9. LeFande now argues that the Magistrate Judge’s decision “flies in the face” of the Supreme Court’s decision in United States v. Zolin, 491 U.S. 554, 565, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989). LeFande’s Obj. at 12. 'Because the Court concludes that the Magistrate Judge did not commit clear error, LeFande’s objections will be overruled.'
“The attorney-client privilege is the oldest of the privileges for confidential communications known to' the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Its purpose is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id. The privilege “applies to a confidential communication between attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client.” In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C. Cir. 2014). A party asserting the attorney-client privilege must demonstrate that:
(1) Thé asserted holder of the privilege is or sought to become a client;
(2) The person to whom the communication was made (a) is a member of the1 bar of a court or her subordinate and (b) in connection with this - communication is acting as a lawyer;
(3) The communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of Strangers (c) for the purpose' of securing primarily either (i) an opinion on the law; (ii) legal services; or (iii) assistance in some legal proceeding, and not (d) . for the purpose of committing a crime or tort; and
(4) The privilege has been (a) claimed and (b) not waived by the client.
The attorney-client privilége is “narrowly construed by the D.C,' Circuit because of its adverse effects on the full disclosure of truth.” United States v. Philip Morris Inc., 212 F.R.D. 421, 424 (D.D.C. 2002). Therefore, “[a] blanket assertion of the [attorney-client] privilege will not suffice.- Rather, [t]he proponent must conclusively prove each element of the privilege.” In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998).
. To support his blanket assertion of attorney-client privilege, LeFande relies on the Supreme Court’s decision, in United States v. Zolin, but that case is largely irrelevant to this dispute. See LeFande Obj. at 12. In Zolin, the Supreme Court was faced with the question of whether a district court could review documents in camera to determine whether those documents were privileged, or whether they were subject to the crime-fraud exception. Zolin, 491 U.S. at 556-57, 109 S.Ct. 2619. The Supreme Court looked to Federal Rules of Evidence 104(a) and 1101(c),
It would not .invade the attorney client privilege to ask Mr. LeFande about his alleged role in the transfer of funds to New Zealand and any actions he took or instructions he provided to third parties to that end. Because the deposition will not necessarily inquire into privileged matters, and because the Court finds no clear error in the Magistrate Judge’s ruling requiring LeFande to sit for a deposition and assert any applicable privileges in response to particular questions, as appropriate, Le-Fande’s objections will be overruled.
CONCLUSION
For those reasons, it is hereby
ORDERED that Matthew LeFande’s objections to the Magistrate Judge’s.Opinion are OVERRULED.
SO ORDERED.
. Day has since passed away. See Suggestion of Death [Dkt. # 106],
. This argument is frivolous. Plaintiff has not sought criminal or disciplinary charges; it seeks contempt for counsel's alleged violations of the Court’s orders. See PL’s Mot. As the D.C. Bar put it, in the context of a criminal contempt proceeding, ’’[t]o interpret Rule 8.4(g) to apply to such a proceeding would, effectively, make it a disciplinary violation for a lawyer to seek this particular remedy, a clearly illogical and anomalous result.” D.C. Bar Ethics Op. 263, Contacts with Persons Represented by Counsel; Application of Rule 8.4(g) to Criminal Contempt Proceedings (Jan. 1996), http://www.dcbar.org/bar-resources/ legal-ethics/opinions/opinion263. cfm.
. The Court referred this matter to the Magistrate Judge under Local Civil Rule 72.2(a), and neither party has objected to that referral. But it appears to be a matter of first impression in this jurisdiction whether a Magistrate Judge has the power to resolve post-judgment discovery issues. In the Federal Magistrates Act, 28 U.S.C. § 636, Congress gave magistrate judges the authority “to hear and determine any pretrial matter pending before the court,” 28 U.S.C. § 636(b)(1), and it also empowered district judges to assign to magistrate judges any "such additional duties as are not inconsistent with the Constitution and laws of the United States.” Id. § 636(b)(3). Leading commenters have concluded that the Supreme Court’s jurisprudence on the power of Magistrate Judges ”[c]ertainly ... can reach the assignment under section 636(b)(3) of posttrial matters comparable in importance to those section 636(b)(1) authorizes a magistrate judge to address before trial.” 12 Charles Alan Wright et al., Federal Practice & Procedure § 3068.1 (2d ed. 1995); 14 Moore’s Federal Practice § 72.02 (Matthew Bender 3d ed.) (“Discovery is a nondispositive pretrial matter that may be referred for disposition to a magistrate judge. Postjudgment discovery in collection proceedings may also be referred to a magistrate judge.”). Because the management of post-judgment discovery is comparable in importance to the management of pretrial discovery, the Court will review the Magistrate Judge’s opinion under the “clear error” standard. The Court notes, however, that its decision would be the same whether it used the "clear error” standard, or whether it reviewed the Magistrate Judge’s opinion de novo — there is ample support in the record, which the Court has reviewed in its entirety, for the Magistrate Judge's conclusions.
. Rule 104(a) provides that "[p]reliminary questions concerning ... the existence of a privilege ... shall be determined by the court,” Fed. R, Evid. 104(a), and Rule 1101(c) provides that ‘‘[t]he rule with respect to privileges applies at all stages of all actions, cases, and proceedings.” Fed. R. Evid. 1101(c). -
, LeFande also' argues that it would ”offend[ ] Rule 1” of the Federal Rule of Civil Procedure to sit for a deposition at which he will “recite the same objections,” and thereafter be brought “back to the Court for consideration ■l of the very same privileges already asserted herein.” LeFande’s Obj. at 12. -But the law does not permit LeFande to make a blanket assertion of privilege, and the Court will be in a better position to determine whether particular questions call for privileged responses when it has the precise questions before it.
.LeFande also raises equitable concerns as to whether post-judgment discovery on the St. Maty’s County matter is appropriate, Le-Fande’s Opp. at 15-16. The Court referred the post-judgment discovery matters to the Magistrate Judge, Order [Dkt. # 90] (Apr. 5, 2016); Order [Dkt. # 95] (June 29, 2016), so those concerns are better directed at the Magistrate Judge in the first instance.
Reference
- Full Case Name
- DISTRICT TITLE v. Anita K. WARREN
- Cited By
- 8 cases
- Status
- Published