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Doe v. Cabrera

United States District Court, D. Columbia

October 20, 2015

JANE DOE, Plaintiff,

          For JANE DOE, Plaintiff: Andrew G. Slutkin, LEAD ATTORNEY, Geoffrey Giles Hengerer, SILVERMAN THOMPSON SLUTKIN & WHITE, Baltimore, MD.

         For 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.



         ELLEN SEGAL HUVELLE, United States District Judge.

         Defendant 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.

         I. HISTORY

         A. Facts

         The 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.)

         On August 5, Ms. Fernandez attended a hearing in which Judge Walton considered arguments on three pending motions,[1] 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." ( Id. )

         After 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),[2] 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. )

         B. Procedural History

         Following 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.[3] 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 Order.)

         Before 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." ).

         Thereafter, 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).)

         II. ...

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