United States District Court, District of Columbia
In re DEPOSITION OF MATTHEW A. LEFANDE, ESQ.
MEMORANDUM OPINION AND ORDER
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
Matthew LeFande has moved to vacate a criminal contempt order
issued against him by the Magistrate Judge when he refused to
take the stand and be sworn for the deposition that was
scheduled to take place on September 21, 2017 in the
Magistrate Judge's Courtroom. Obj. to Magistrate
Judge's Order & Renewed Request for Protective Order
[Dkt. # 123] (“Obj. to Contempt Order”). For the
reasons that follow, the Court will overrule LeFande's
objections and affirm the Magistrate Judge's Criminal
Contempt Order. Minute Entry and Order (Sept. 21, 2017);
Order [Dkt. # 121] (“Criminal Contempt Order”).
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 the mortgage lender, 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). District Title sued, and attorney LeFande
represented the defendants in that action.
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
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, which included a request for court permission
to serve subpoenas on three individuals, including 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 LeFande “may have information
concerning assets held or transferred by Timothy Day.”
Id. at 5.
Court referred the motion to a Magistrate Judge for decision
pursuant to Local Civil Rule 72.2(a). Order (Apr. 5, 2016)
[Dkt. # 90]. On 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 suggested 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 proffered 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.
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. Dist. Title v.
Warren, No. CV 14-1808, 2017 WL 2462489, (D.D.C. June 2,
2017) (“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 4-5. On June
16, 2017, LeFande submitted objections to the Magistrate
Judge's order to this Court, and he renewed his request
for a protective order. Obj. to Magistrate Judge's Op.
& Request for Protective Order [Dkt. # 111]
14, 2017, the Court overruled LeFande's objection to the
Magistrate Judge's Opinion which ordered him to appear
for the deposition. Dist. Title v. Warren, 265
F.Supp.3d 17, 23 (D.D.C. 2017). In its ruling, the Court
specifically held that a blanket assertion of attorney-client
privilege would not suffice, and that LeFande was required to
assert both the Fifth Amendment privilege and the
attorney-client privilege on a question by question basis.
Id. at 3- 5. Thereafter, plaintiff sent a letter to
LeFande's counsel seeking to set a date for LeFande's
deposition. Since there was no response, a subpoena was
issued on July 17, 2017, ordering LeFande to appear to be
deposed on August 11, 2017 at 10:00 am, at the law office of
plaintiff's attorney. Subpoena to Testify at Deposition
in Civil Action, Ex. 5 to Pl.'s Status Report [Dkt. #
alleges that LeFande attempted to evade service, so
plaintiff's counsel resorted to emailing LeFande to
determine when he might be available to accept service.
See David Barefoot Affidavit of Attempted Service,
Ex. 6 to Pl.'s Status Report [Dkt. # 114-6] (documenting
at least six attempts to serve LeFande at his residence
between July 27, 2017 through August 5, 2017); see
also Email from Brian Thompson, plaintiff's counsel,
to Matthew LeFande dated August 3, 2017, Ex. 7 to Pl.'s
Status Report [Dkt. # 114-7]. Once again there was no
response. LeFande did not appear for the scheduled deposition
on August 11, 2017. Pl.'s Status Report [Dkt. # 114] at
LeFande's failure to appear at the August 11 deposition,
the Magistrate Judge held a status hearing with the parties
on September 15, 2017 at which LeFande appeared with his
counsel. Minute Order (Sept. 15, 2017). At the status hearing
the Magistrate Judge granted plaintiff's oral motion to
take LeFande's deposition consistent with both the
Magistrate Judge's and this Court's prior opinions.
Id. The order required LeFande to appear in her
courtroom on September 21, 2017, to be deposed by
plaintiff's counsel. Id; see also Order [Dkt. #
responded by filing a motion to dismiss his now deceased
client, Timothy Day, from the underlying civil action. Mot.
to Dismiss for Lack of Jurisdiction Over Deceased Def. [Dkt.
# 117]. He maintained that this procedural step would relieve
him of any obligation to respond to plaintiff's request
for discovery in execution of the judgment, including his
deposition. Id. On September 18, 2017, this Court
issued a Minute Order which held in relevant part:
Because the post-judgment discovery efforts relate to both
defendants, and defendant Warren is still a proper defendant
in this case, the terms of the Magistrate Judge's
September 15, 2017 Order (Dkt. # 115) remain in effect: Mr.
LeFande shall appear in Courtroom 4 at 1:00 p.m. on Thursday,
September 21, 2017, to be deposed by counsel for plaintiff;
he shall be sworn; and he shall answer each question
propounded to him, unless he invokes a specific privilege on
the record with respect to that specific question. Mr.
LeFande may not ...