United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
BERMAN JACKSON United States District Judge.
District Title, a real estate settlement company, was
handling the sale of a property formerly owned by defendant
Anita K. Warren when it erroneously transferred $293, 514.44
to Warren instead of to the mortgage lender, non-party Wells
Fargo Bank, N.A. Am. Compl. [Dkt. # 5] ¶ 15. Warren
promptly transferred the funds to her son Timothy Day, and
the two refused to give the money back. See District
Title v. Warren, No. 14-1808, 2015 WL 7180200, at *1
(D.D.C. Nov. 13, 2015). On November 13, 2015, the Court
granted summary judgment to plaintiff on a breach of contract
count brought against Warren and an unjust enrichment count
brought against Day. See Id. The Court entered
judgment in favor of plaintiff in the amount of $293, 514.44,
plus pre-and-post judgment interest and attorneys' fees
and costs, and it also entered a permanent injunction to
enjoin defendants from dissipating their assets until the
judgment was satisfied. Order (Nov. 13, 2015) [Dkt. # 79];
see also Order (Aug. 3, 2016) [Dkt. # 100] (amending
the November 13, 2015 order to correct a clerical error). The
D.C. Circuit summarily affirmed the Court's judgment.
District Title v. Warren, No. 15-7157, 2016 WL
3049558 (D.C. Cir. May 4, 2016).
March 22, 2016, plaintiff filed a motion to conduct
post-judgment discovery related to its efforts to collect on
the judgment; it sought to depose Day,  and it sought
court permission to serve subpoenas on three individuals,
including counsel for defendants, Matthew LeFande.
See Mem. of P. & A. in Supp. of Pl.'s Mot.
for Oral Examination of J. Debtor Timothy Day & Third
Parties, & for Leave to Serve Subpoenas [Dkt. # 88-1].
Plaintiff asserted that it sought to issue a subpoena on
LeFande because he “may have information concerning
assets held or transferred by Timothy Day.”
Id. at 5.
Court referred the motion to a Magistrate Judge pursuant to
Local Civil Rule 72.2(a). Order (Apr. 5, 2016) [Dkt. # 90].
Thereafter, the Court referred another post-judgment
discovery matter to the same Magistrate Judge. See
Order (June 29, 2016) [Dkt. # 95] (referring plaintiff's
motion for the issuance of Letters Rogatory to the Auckland
High Court in Auckland, New Zealand); Mem. Op. & Order
[Dkt. # 104] (granting the motion for the issuance of Letters
April 21, 2017, plaintiff moved for an order to show cause as
to why LeFande should not be held in contempt, and it renewed
its request for leave to issue a subpoena to LeFande.
Pl.'s Mot. to Show Cause Why Timothy Day's Counsel
Should Not be Held in Contempt & Renewed Request for
Issuance of Subpoena to Matthew LeFande [Dkt. # 107]
(“Pl.'s Mot.'). In support of its motion,
plaintiff pointed to testimony in a related proceeding in a
Maryland state court that LeFande was complicit in the
concealment of defendant Day's assets. Pl.'s Mem. of
P. & A. in Supp. of Pl.'s Mot. [Dkt. # 107-1]
(“Pl.'s Mem.”) at 3. Plaintiff proffers that
Day transferred over $80, 000 in profits received from a
November 2014 sale of property in St. Mary's County,
Maryland to an account in New Zealand. Id. At a
trial related to the St. Mary's County transaction, a
witness testified that it was Day's attorney, Matthew
LeFande, who instructed the settlement company to transfer
the funds to the New Zealand account. Id.
opposed the motion and sought a protective order. Opp. to
Pl.'s Mot. & Request for Protective Order [Dkt. #
108] (“LeFande's Opp.”). In his opposition,
LeFande asserted his Fifth Amendment right against
self-incrimination, and he also asserted that any testimony
would be covered by the attorney-client privilege.
opinion dated June 2, 2017, the Magistrate Judge granted
plaintiff's motion for the issuance of a subpoena, denied
LeFande's motion for a protective order, and stayed the
request for a show cause order. Mem. Op. & Order [Dkt. #
110] (“Magistrate Judge's Opinion”). The
Magistrate Judge concluded that LeFande's assertions of
privilege were premature because LeFande would be required to
assert the attorney-client and fifth-amendment privileges on
a question-by-question basis. Id. at 8-9. On June
16, 2017, LeFande filed objections to the Magistrate
Judge's order, and he renewed his request for a
protective order. Obj. to Magistrate Judge's Op. &
Request for Protective Order [Dkt. # 111]
(“LeFande's Obj.”). In that opposition,
LeFande also contends that plaintiff violated D.C. Rule of
Professional Conduct 8.4 by “seek[ing] or threaten[ing]
to seek criminal charges or disciplinary charges solely to
obtain an advantage in a civil matter.” Id. at
11-12. Plaintiff responded to the objections,
Reply in Obj. to LeFande's Obj. [Dkt. # 112]
(“Pl.'s Resp.”), and LeFande did not file a
reply. Because LeFande has not pointed to any clear error,
and because the Magistrate Judge's opinion is not
contrary to law, LeFande's objections will be overruled.
Civil Rule 72.2(a) permits a district court to refer
“any pretrial motion or matter, ” with the
exception of certain motions and petitions set forth in Local
Civil Rule 72.3, to a Magistrate Judge. Baylor v.
Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939,
945 (D.C. Cir. 2017), quoting LCvR 72.2(a). If any party
files written objections to a Magistrate Judge's ruling
on such a matter, the District Court “may modify or set
aside any portion of [the] order . . . found to be clearly
erroneous or contrary to law.” LCvR 72.2(c). “A
court should make such a finding when the court ‘is
left with the definite and firm conviction that a mistake has
been committed.'” New Life Evangelistic Ctr.,
Inc. v. Sebelius, 847 F.Supp.2d 50, 53 (D.D.C. 2012),
quoting Am. Soc'y for Prevention of Cruelty to
Animals v. Feld Entm't, Inc., 659 F.3d 13, 21 (D.C.
challenges the Magistrate Judge's ruling on two grounds:
first, he argues that any testimony that would be sought from
him would be protected by the Fifth Amendment privilege
against self-incrimination, and second, he contends that any
testimony would be protected by attorney-client privilege.
Because LeFande cannot assert these privileges to bar all
questioning, the Court will overrule the objections.
LeFande must assert the self-incrimination privilege on a
argued before the Magistrate Judge that he would refuse to
answer any questions about the St. Mary's County
transaction, and he cited his Fifth Amendment privilege
against self-incrimination. LeFande's Opp. at 7. The
Magistrate Judge concluded that LeFande's blanket
assertion of the self-incrimination privilege was premature.
The Magistrate Judge held:
[N]o authority supports the proposition that the threat by a
witness to claim such privileges is a basis upon which to
preclude the issuance of a subpoena. Rather, the applicable
authorities require that claims of such privileges be made in
response to a specific question or ...