United States District Court, D. Columbia
JANE DOE, Plaintiff: Andrew G. Slutkin, LEAD ATTORNEY,
Geoffrey Giles Hengerer, SILVERMAN THOMPSON SLUTKIN & WHITE,
ALFREDO SIMON CABRERA, Defendant: Benjamin Voce-Gardner, LEAD
ATTORNEY, PRO HAC VICE, ZUCKERMAN SPAEDER, LLP, New York, NY;
Jon Ross Fetterolf, ZUCKERMAN SPAEDER, LLP, Washington, DC.
CRIME VICTIMS RESOURCE CENTER, Movant: Terrence Michael
Andrews, LEAD ATTORNEY, DC VICTIMS RESOURCE CENTER, Upper
SEGAL HUVELLE, United States District Judge.
Alfredo Simon Cabrera and interested non-party Benjamin
Voce-Gardner filed a joint motion seeking to quash subpoenas
served upon Marina Fernandez and Mr. Voce-Gardner in the
above-captioned case pending before Judge Reggie Walton.
(Joint Motion to Quash Subpoena and for a Protective Order,
Sept. 11, 2015, ECF No. 79 (" J. Mot." ).) The
subpoenas arise from several text messages sent by Ms.
Fernandez--employed at that time as a law clerk to Judge
Walton--to Mr. Voce-Gardner, an associate at defense
counsel's law firm of Zuckerman Spaeder. Judge Walton
referred consideration of the Joint Motion to the Calendar
Committee for random reassignment, and as a result, this
Court will address this motion only. (Order, Sept. 14, 2015,
ECF No. 83 (" Referral Order" ).) For the reasons
explained more fully herein, the Court grants the motion in
part and denies it in part.
factual circumstances underlying the present discovery
dispute have been discussed in detail by Judge Walton. (
See Memorandum Opinion, Sept. 30, 2015, ECF No. 89
(" Disqualification Memo. Op." ).) For purposes of
this motion, an abbreviated recitation will suffice. On
August 6, 2015, one of Judge Walton's law clerks, Marina
Fernandez, sent several text messages to Benjamin
Voce-Gardner, an associate at Zuckerman Spaeder who had
entered an appearance on behalf of defendant in the
above-captioned case. ( See Order, Aug. 18, 2015,
ECF No. 75, Ex. A (" Zuckerman Spaeder Letter" ).)
Judge Walton had previously screened Ms. Fernandez from
substantive involvement in the case due to the fact that her
father was and remains a partner at Zuckerman Spaeder. (
Id. at Ex. C (" Fernandez Decl." ).) Ms.
Fernandez had enjoyed a personal relationship with Mr.
Voce-Gardner since January 2015, when he represented her in
an unrelated legal matter on a pro bono basis and the two
" became friends." ( Id. ) Whether Judge
Walton was made aware of this relationship, prior to
revelation of the ex parte text messages, is unclear from the
record; plaintiff, however, was not. (Pl.'s Opposition to
Joint Motion to Quash, Sept. 28, 2015, ECF No. 87 ("
Pl.'s Opp'n" ) at 4.)
August 5, Ms. Fernandez attended a hearing in which Judge
Walton considered arguments on three pending
motions, including defendant's Motion for
Disclosure of [Plaintiff's] Grand Jury Testimony. (
See Transcript, Mot. Hear. Before J. Walton, Aug.
13, 2015, ECF No. 74.) On August 6, at 2:56 p.m., Ms.
Fernandez texted Mr. Voce-Gardner: " You're going to
owe me a beer, FYI." (Pl.'s Sur-Reply in Opp'n
to J. Mot, Oct. 14, 2015, ECF No. 94 (" Pl.'s
Sur-Reply" ), Ex. B.) At 3:34 p.m. that same day, Judge
Walton issued an order granting defendant's Motion for
Disclosure. (Order, Aug. 6, 2015, ECF No. 72.) Then, at 4:25
p.m., Ms. Fernandez texted Mr. Voce-Gardner: " Yes, as
of 3:34 today you owe me a beer (or wine!)." (Pl.'s
Sur-Reply, Ex. B.) At an unspecified time later that
afternoon, she sent him a final text: " Dude, it's a
joke. Let's catch up soon for real though." (
Judge Walton scheduled an emergency status conference to
address the apparent impropriety, Zuckerman Spaeder sent a
letter to the Court divulging the content of the text
messages (albeit not the text messages
themselves), and adding that Ms. Fernandez had also
sent a " similarly worded" text message to her
father that same day. (Zuckerman Spaeder Letter.) The letter
also revealed an additional text message sent by Ms.
Fernandez to Mr. Voce-Gardner on June 29, 2015, in which Ms.
Fernandez informed Voce-Gardner that she had recently dealt
with a discovery dispute with the parties over the phone and
expressed an eagerness to socialize with Voce-Gardner if and
when he happened to be in Washington, D.C. ( Id. )
the emergency status conference held on August 18, 2015,
plaintiff filed a motion to disqualify Judge Walton.
(Pl.'s Motion to Disqualify, Aug. 28, 2015, ECF No. 77
(" Mot. to Disqualify" ).) Plaintiff argued that
the undisclosed prior relationship between the law clerk and
Voce-Gardner, the law clerk's text messages, and the
ruling favorable to defendant on the Motion for Disclosure
cast doubt on the legitimacy of that and other rulings by
Judge Walton. Plaintiff further submitted that, considered in
their totality, the circumstances reflected substantive bias
on the part of the Court, or at the very least, created an
" appearance of impropriety." ( Id. at 1.)
Plaintiff sought extensive discovery to bolster her argument
for disqualification by subpoenaing documents from both Mr.
Voce-Gardner and Ms. Fernandez, prompting defendant and
Voce-Gardner (as an interested non-party to the underlying
civil case) to file a Joint Motion to Quash Subpoena and for
a Protective Order. Judge Walton retained jurisdiction
over the Motion to Disqualify, but requested that the
Court's Calendar Committee randomly reassign the Joint
Motion to Quash to another member of the Court. (Referral
the parties could file responsive pleadings on the discovery
dispute, Judge Walton issued a twenty-seven page Memorandum
Opinion denying plaintiff's Motion to Disqualify. In the
last four pages of the decision, Judge Walton addressed the
reassigned discovery dispute. (Disqualification Memo. Op. at
24) (" Simply put, through the Court's
representations at the emergency telephonic conference and
the two law clerks' declarations, the plaintiff has all
the information she needs to advance the strongest case she
can muster for the Court's recusal." ).
this Court questioned how Judge Walton's opinion might
impact the resolution of the reassigned discovery dispute and
asked the parties to brief two separate issues: first,
whether Judge Walton's refusal to recuse himself from the
case rendered the corresponding discovery motion moot, and
second, whether this Court still possessed jurisdiction to
rule upon the issue when another member of the Court had
already " address[ed] the propriety of any
discovery." (Order, Oct. 4, 2015, ECF No. 90 (quoting
Disqualification Memo. Op. at 23 n.28).)