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Non-party, the Metropolitan Police Department (“MPD”), moves to quash the notice of
deposition of defendant, Joseph Price, which seeks to depose Detective Xanten, presently
scheduled for Monday, April 18, 2011, at 10:00 a.m. MPD moves to quash based upon the law
enforcement privilege because there is an open investigation in the companion criminal matter
and Detective Xanten did not testify in the companion criminal matter. Additionally, MPD
moves to quash the notices of depositions of 1) Detective Milton Norris, presently scheduled for
Monday, April 18, 2011, at 1 p.m.; 2) Detective Daniel Whalen, presently scheduled for
Wednesday, April 20, 2011, at 10:00 a.m.; and 3) Sergeant Daniel Wagner, presently scheduled
for Wednesday, April 20, 1011, at 1:00 p.m.1 for the limited purpose of asserting the law
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Defense counsel has informed undersigned counsel that more notices will be filed in the upcoming weeks. When
such notices are filed, MPD reserves the opportunity to supplement the instant motion as to all additional witnesses.
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enforcement privilege over subject matter not previously divulged by law enforcement during the
course of the criminal investigation, the related criminal trial, and the pendency of the instant
civil case because there remains an open criminal investigation. Additionally, none of the
officers have been personally served with notice of the depositions. Furthermore, the witness fee
In support thereof, this Court is respectfully referred to the Memorandum of Points and
Respectfully submitted,
IRVIN B. NATHAN
Acting Attorney General for the District of Columbia
GEORGE C. VALENTINE
Deputy Attorney General, Civil Litigation Division
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Appearance entered under D.C. App. Rule 49(c)(4).
2
(202) 727-9624(phone)
(202) 741-0569 (fax)
Email: patricia.donkor@dc.gov
Certificate of Service
I HEREBY CERTIFY that on April 14, 2011, a copy of the foregoing Motion to Quash
Craig D. Roswell
Brett A. Buckwalter
PATRICIA B. DONKOR
3
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION
____________________________________
)
ESTATE OF ROBERT E. WONE, )
By Katherine E. Wone )
)
Plaintiff, ) 2008 ca 8315
) Judge Michael L. Rankin
) Calendar 7
v. )
)
JOSEPH R. PRICE, et al., )
)
Defendants. )
___________________________________ )
On April 6, 2011, defendant filed notices of depositions for 1) Detective Xanten, presently
scheduled for Monday, April 18, 2011, at 10:00 a.m., 2) Detective Milton Norris, presently
scheduled for Monday, April 18, 2011, at 1 p.m.; 3) Detective Daniel Whalen, presently
scheduled for Wednesday, April 20, 2011, at 10:00 a.m.; and 4) Sergeant Daniel Wagner
presently scheduled for Wednesday, April 20, 1011, at 1:00 p.m. Detective Xanten did not
testify during the companion criminal trial. Detectives Whalen and Norris and Sergeant Wagner
Undersigned counsel is unaware of the expected topics that counsel intends to cover during
the scheduled deposition. However, to the extent that any participating attorney seeks to explore
subject matter and elicit testimony about information not previously divulged during the related
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criminal investigation, criminal trial, and pendency of the instant civil matter, MPD exerts the
law enforcement privilege over such topics and moves to quash any and all questions concerning
topics covered by the law enforcement privilege. Because Detective Xanten did not testify at the
criminal trial, MPD requests that the notice of deposition of Detective Xanten be quashed in its
entirety. With respect to the other officers, MPD requests that any deposition of them be limited
by the law enforcement privilege because there remains an open criminal investigation.
Additionally, none of the officers have been personally served with notice of the depositions.
Furthermore, the witness fee has not been paid for any of these officers. Therefore, on this
Superior Court Civil Procedure Rule 26(b)(1) permits parties to obtain discovery
regarding matters that are not privileged. In this case, the information the parties seek is
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claimed privilege [namely, 3(a)] specifying which documents or
class of documents are privileged and [3(b)] for what reasons.
Kay v. Pick, 711 A.2d 1251, 1256 – 1257 (D.C. 1998) (internal citations and quotations omitted).
Here, undersigned counsel is unaware of the topics that counsel intends to cover during the
speak to Attorney Buckwalter. While Attorney Buckwalter was extremely cooperative, he was
candid in admitting that there is a strong likelihood that he will explore topics that may not have
been covered during the criminal case. He also admitted that he will not voluntarily limit the
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scope of his deposition to subject matter previously explored during the criminal investigation,
criminal trial, and pendency of the instant civil case. Because the criminal investigation remains
open, matters not previously divulged are covered by the law enforcement privilege. See Exhibit
MPD As a result, to the extent that any participating attorney seeks to explore subject matter and
elicit testimony about information not previously divulged during the related criminal
investigation, criminal trial, and pendency of the instant civil matter, MPD exerts the law
enforcement privilege over such topics because they are covered by the law enforcement
privilege. See Kay, 711 A.2d at 1256 – 1257. Because Detective Xanten did not testify at the
criminal trial, MPD requests that the notice of deposition of Detective Xanten be quashed in its
entirety. Id. With respect to the other officers, MPD requests that any deposition of them be
limited by the law enforcement privilege. Additionally, none of the officers have been
personally served with notice of the depositions. Furthermore, the witness fee has not been paid
for any of these officers. Therefore, on this reason alone, the notices should be quashed.
IV. CONCLUSION
Quash, MPD respectfully requests that this Court grant its Motion to Quash and quash the
deposition notice of Detective Xanten in it’s entirely. With respect to the remaining officers,
MPD requests that this Court declare that the law enforcement privilege precludes counsel from
exploring subject matter and eliciting testimony about information not previously divulged
during the related criminal investigation, criminal trial, and pendency of the instant civil matter.
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Dated: April 14, 2011
Respectfully submitted,
IRVIN B. NATHAN
GEORGE C. VALENTINE
(202) 727-9624(phone)
Email: patricia.donkor@dc.gov
Certificate of Service
I HEREBY CERTIFY that on April 14, 2011, a copy of the foregoing Motion to Quash
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Appearance entered under D.C. App. Rule 49(c)(4).
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was electronically mailed to via CASEFILEXPRESS:
Craig D. Roswell
Brett A. Buckwalter
Niles, Barton & Wilmer, L.L.P.
111 S. Calvert Street
Ste. 1400
Baltimore, MD 21202
(202) 662-6000
9
Frank F. Daily, Esquire
Ralph C. Spooner
Salem, OR 97301
PATRICIA B. DONKOR
10
SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION
____________________________________
)
ESTATE OF ROBERT E. WONE, )
By Katherine E. Wone )
)
Plaintiff, ) 2008 ca 8315
) Judge Michael L. Rankin
) Calendar 7
v. )
)
JOSEPH R. PRICE, et al., )
)
Defendants. )
___________________________________ )
ORDER
Upon consideration of the MPD’s Motion to Quash, and the entire record herein, and
ORDERED that notice of deposition of Detective Xanten is quashed pursuant to the law
ORDERED that the law enforcement privilege prohibits counsel from exploring subject
matter and eliciting testimony about information not previously divulged during the criminal
Michael L. Rankin
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Associate Judge
Copies to:
Patricia B. Donkor
Craig D. Roswell
Brett A. Buckwalter
Niles, Barton & Wilmer, L.L.P.
111 S. Calvert Street
Ste. 1400
Baltimore, MD 21202
(202) 662-6000
12
David Schertler, Esquire
Ralph C. Spooner
Salem, OR 97301
13