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KAY v. PICK

May 21, 1998

JAMES A. KAY, JR., APPELLANT,
V.
HAROLD PICK, ET AL., DEFENDANTS. APPEAL OF FEDERAL COMMUNICATIONS COM'N, APPELLEES.



APPEAL FROM THE SUPERIOR COURT, ELLEN SEGAL HUVELLE, J. [711 A2d Page 1252]

Before King, Reid, and WINFIELD[fn*] Associate Judges. [fn*] Sitting by designation, pursuant to D.C.Code § 11-707(a) (1995).

The opinion of the court was delivered by: Winfield, Associate Judge:

This is a third-party subpoena enforcement (discovery protection) case in which the trial judge granted a motion to quash a subpoena that had been served upon a former employee of the Federal Communications Commission (the "F.C.C."). We conclude that the trial judge did not abuse her discretion in finding that the subject matter of both the documents and the testimony sought by the [711 A2d Page 1253]

subpoena is protected by the law enforcement privilege. We affirm. *fn1

FACTUAL SUMMARY

Appellant, is an individual who currently holds more than 150 radio licenses issued by the F.C.C. which he operates in the Los Angeles, California area. After the licenses were issued, the F.C.C. received numerous complaints that appellant operated these licenses improperly. In October 1993, the F.C.C. initiated an investigation into these allegations which resulted in a decision by an administrative law judge to revoke all of appellant's licenses. Appellant appealed administratively and the matter was remanded to the full Commission for reconsideration in May 1998. *fn2

Just before the F.C.C. began its investigation in August 1993, appellant filed a civil case in Los Angeles, California ("the California litigation") against defendants Harold and Gerard Pick and Frank DeMarzo, three of his business competitors. *fn3 The suit seeks damages for alleged acts of slander, intentional interference with economic relationships, unfair business practices, and intentional infliction of emotional distress. Appellant alleged in the California litigation that the defendants falsely accused him of committing serious crimes, including murder, and falsely impugned his business practices. Appellant asserts that the defendants may have made false reports and accusations against him to the F.C.C. and generated the F.C.C. investigation.

During the course of the California litigation, appellant served interrogatories on defendant DeMarzo that included a request for the names, addresses, and telephone numbers of all persons whom DeMarzo claimed had knowledge of his defenses. In response to this interrogatory, DeMarzo provided twenty-eight names of individuals, including four persons associated with the F.C.C. Among these four was Robert Andary who by then was no longer employed at the F.C.C. *fn4 From May 1992 to May 1995, however, Robert Andary had been Counsel to the Inspector General and Director of Investigations for the Office of the Inspector General at the F.C.C. In this capacity, he participated in the investigation of appellant that is the subject of the pending license revocation hearing.

When appellant received DeMarzo's responses to the interrogatories, he served a subpoena on Andary requesting his deposition and the production of all documents pertaining to, essentially, any and all written, telephonic or oral correspondence and communications between Mr. Andary and the defendants, and any and all third persons that in any way pertained to the appellant in any matter. The Department of Justice on behalf of the F.C.C. objected in a letter dated July 23, 1996, on the grounds that the law enforcement privilege as well as the confidential source, deliberative process and work product privileges protect the proposed testimony. The parties agreed to delay further proceedings until a motion to quash the subpoena [711 A2d Page 1254]

poena served on Andary could be filed by the government and resolved by a court.

The motion to quash was filed in the Superior Court, along with a Declaration and Formal Assertion of Privilege of Gary L. Stanford, Associate Bureau Chief of the Wireless Telecommunications Bureau ("WTB") at the F.C.C. In his affidavit, Mr. Stanford attested that (1) appellant's licenses are within the oversight authority of the WTB; (2) he was personally responsible for investigations conducted by the WTB; (3) he was personally familiar with the pending investigation of the appellant, and (4) he was authorized to assert the law enforcement, deliberative process, confidential source and work product privileges on behalf of his agency. Stanford further attested that Robert Andary had been one of several attorneys who had participated in the investigation of appellant. Finally, Mr. Stanford attested that any information that Mr. Andary could give regarding appellant or the defendants was gleaned solely from his participation in the official investigation of appellant. Mr. Stanford declared that Mr. Andary's expected testimony would likely reveal confidential sources in the pending F.C.C. litigation against appellant as well as the F.C.C.'s law enforcement procedures that would compromise the agency's deliberative processes. Mr. Stanford specifically declared that testimony from Mr. Andary would reveal the scope and direction of the F.C.C. investigation of appellant, the evidence amassed to date and the F.C.C.'s investigative strategies. In addition, Mr. Stanford expressed concern that disclosures would enable appellant to identify and intimidate potential witnesses and informants, take corrective action to avoid discovery of new violations, and potentially tamper with evidence.

With respect to the demand by appellant for documents from the F.C.C., Mr. Stanford declared that two documents would be produced, ten documents were publicly available and two others were privileged. Of the claimed privileged documents, Mr. Stanford described one as a witness statement obtained by the F.C.C. during its investigation of the appellant and the other is Mr. Andary's daily business journal. Mr. Stanford claimed that the witness statement was clearly protected inasmuch as it was a confidential source account pertaining entirely to the pending F.C.C. case and not to the California litigation. According to Mr. Stanford, the business log of Mr. Andary either contained notations of personal appointments that were irrelevant to the California case or that memorialized meetings he held with informants and witnesses, or other aspects of the F.C.C. investigation of appellant.

Appellant opposed the motion to quash. He asserted that the California litigation is wholly independent of the F.C.C. investigation and as such the deposition of Andary would not involve disclosure of privileged F.C.C. matters. He argues that Mr. DeMarzo named Mr. Andary as a person who was a witness to his defense. Appellant contends that he is entitled to learn what Mr. Andary knows or has witnessed that supports Mr. DeMarzo's denial of liability in the California case. Finally, appellant argues that Mr. Andary is not a current F.C.C. employee ...


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