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In re Deposition of Lefande

United States District Court, District of Columbia

February 26, 2018




         Attorney 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”).


         Plaintiff 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.

         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.[1] 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).

         On 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.

         The 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. Id.

         LeFande 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. Id.

         In an 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] (“LeFande's Obj.”).

         On July 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. # 114-5].

         Plaintiff 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 2.

         Due to 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. # 115].

         LeFande 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 ...

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