Arent Fox has been pulled into a $20 million wrongful death suit filed by the wife of a Washington lawyer who was found stabbed to death in the home of one of the firm's former partners.
Lawyers for Katherine Wone have asked a District of Columbia Superior Court judge to enforce a subpoena for e-mail and other documents that former Arent Fox partner Joseph Price created while at the firm. Price has refused to permit Arent Fox to release those documents, citing various privileges including attorney-client and spousal privilege.
The documents, according to court records, include e-mail with several lawyers at the firm and elsewhere in addition to messages to and from Price's domestic partner and housemate. Price, Victor Zaborsky and Dylan Ward were acquitted in late June of obstruction and conspiracy charges related to the murder of Robert Wone after a monthlong bench trial. No one has been charged with murder in the case.
Wone's lawyers -- Patrick Regan of Washington's Regan Zambri & Long and a team from Covington & Burling, where her husband once worked -- are demanding that Arent Fox hand over hundreds of e-mails that Price sent and received on his work computer, claiming the messages are "highly relevant" to the suit.
In a Sept. 10 motion to compel, lawyers for Wone claim that Price had no expectation of privacy sending and receiving e-mail over Arent Fox's computer system, and that the spousal privilege only applies to testimony, not documents. The motion to compel was filed against Price, not Arent Fox.
Arent Fox partners D. Jacques Smith and Randall Brater, who are representing the firm in Superior Court, declined to comment through a spokesman. The firm has not intervened and has not filed court papers in the case, which is set for trial in October 2011.
Defense lawyers for Price, Zaborsky and Ward either declined to comment or did not return messages seeking comment. An attorney for Price, Craig Roswell of Baltimore's Niles, Barton & Wilmer, said he is planning to file a response this week in court.
Arent Fox could turn over the documents to Covington, but doing so would expose the firm to a potential suit from Price over privacy invasion, a professor of legal ethics said. "Any law firm under these circumstances would be consulting with in-house or outside counsel not just for an ethics opinion but a risk opinion -- how dangerous is it to do one thing or another," said Michael Frisch of Georgetown University Law Center. "A firm in that circumstance would be thinking about ligation."
800 E-MAIL MESSAGES
The fight stems from a subpoena that Covington attorneys served on Arent Fox in January 2009 seeking documents related to Robert Wone and the investigation of his murder. The civil case was later put on hold for the criminal prosecution.
Price reviewed the documents Arent Fox compiled in 2009, and he instructed the firm to withhold more than 800 messages -- sent and received between August 2006 and November 2008 -- on the basis of various claimed privileges. Price left the firm in January 2009.
In Wone's motion to compel Price to produce the documents, Covington partner Benjamin Razi said none of the documents relate to the law firm's business or clients. Razi declined to comment.
Wone's attorneys are eager to examine 11 e-mails between Price and Zaborsky in August 2006, the same month Wone was stabbed to death in the rowhouse the registered domestic partners owned in northwest Washington. There are also more than 170 messages between Price and Ward, who also lived in Price's home. Forty-five e-mails between Price and Zaborsky have been withheld on the ground of spousal privilege.
A privilege log listing the documents that Arent Fox has withheld identifies e-mail traffic between Price and the defense team in the criminal case including David Schertler of Washington's Schertler & Onorato, Wiltshire & Grannis partner Thomas Connolly, Cozen O'Connor partner Bernard Grimm and former Arent Fox attorney Laura Lester, who has since joined Arnold & Porter as counsel.
In several e-mails marked as "confidential" in the log, Price wrote to Ward about confiscated items, "hate mail" and the condition of their house after the murder investigation. Price occasionally wrote e-mails to himself that he has told Arent Fox not to produce. "With respect to e-mails from Mr. Price to himself, these e-mails are protected by the attorney work product doctrine," Niles Barton partner Brett Buckwalter, a lawyer for Price, said in an Aug. 16 letter to Wone's attorneys. "Mr. Price was an attorney participating in the joint defense. As such his legal impressions and work product are privileged."
In July and August, lawyers for Price and Wone's counsel held several telephone conferences to try to resolve the document dispute. (Also in August, Price, Zaborsky and Ward refused to answer 21 interrogatory questions about the murder, citing their right against self-incrimination.)
Wone's attorneys argue that Arent Fox employees are bound by a policy that all data over the firm's network are "subject to subpoena and disclosure in a legal proceeding."
"The Computer Policy made plain in unambiguous terms that emails sent using the law firm's computers and email accounts were the property of the firm and its clients, and specifically, that users had no expectation of privacy in such communications," Razi said in court papers. "As an experienced lawyer in a leading law firm, Price surely understood the meaning of the clear policy."
All users of the Arent Fox network, Razi said, are required to agree to the policy each time the employee logs into the law firm's network.
POLICY OR PRIVILEGE?
Several lawyers in Washington who follow workplace privacy issues said the dispute hinges on whether Price reasonably believed his e-mail communication was confidential. It's unknown how often Arent Fox reviewed and saved the e-mails of employees.
The fact an employer can look at e-mails doesn't necessarily mean an employee can't have confidential communication with an attorney over the firm's network, said Marc Zwillinger of Zwillinger Genetski, a Washington boutique firm that specializes in Internet security and privacy issues.
Last December, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia found that an assistant U.S. attorney in Detroit, Jonathan Tukel, had an expectation of privacy in attorney-client e-mails sent via the Department of Justice's computer system. Lamberth ruled that the plaintiff in the employment-related civil suit, which is pending, is not entitled to view the e-mails of Tukel, a former defendant in the litigation.
"The DOJ maintains a policy that does not ban personal use of the company e-mail," Lamberth wrote. "Although the DOJ does have access to personal e-mails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving e-mails sent from his account."
Zwillinger and other lawyers said it will be difficult for Price to claim spousal privilege. Wone's lawyers maintain that the District of Columbia Code, which governs the privilege, says that a person cannot be compelled to testify "for or against their spouse or domestic partner."
"It's not a privilege that protects communication that you send to your spouse," Zwillinger said. "If you write an e-mail and send it your wife, there's no privilege. It's hard to see how the spousal privilege applies."
Glen Ackerman of Washington's Ackerman Legal, a general-practice firm that handles employment and discrimination issues in the gay community, said the spousal privilege could be waived since the "universe of IT" workers at Arent Fox had access to Price's e-mail correspondence with Zaborsky. "This is another example where the law has not caught up with technology," he said.