MEMORANDUM OPINION AND ORDER
AMY BERMAN JACKSON, District Judge.
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 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).
On 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,
The 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 Rogatory).
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 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.
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. 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.
STANDARD OF REVIEW
Local 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).
LeFande 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.
I. LeFande must assert the self-incrimination privilege on a question-by-question basis.
LeFande 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:
Magistrate Judge's Opinion at 8-9. While LeFande asserts that "there are no questions the attorney will answer without asserting the [Fifth Amendment] privilege," LeFande Obj. at 9, he does not argue that the Magistrate Judge erred in any way. Because the Court agrees with the Magistrate Judge's conclusion, LeFande's objection will be overruled.
The Fifth Amendment protects a person from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The privilege "can be asserted in any proceeding, civil or criminal . . . and it protects any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 444-45 (1972). The privilege may be invoked whenever a witness reasonably believes that his testimony could "furnish a link in the chain of evidence needed to prosecute" him for a crime. Hoffman v. United States, 341 U.S. 479, 486 (1951). But the danger of self-incrimination must be real, not remote or speculative. Zicarelli v. N.J. State Comm'n of Investigation, 406 U.S. 472, 478 (1972). So, as the Supreme Court held more than sixty years ago, "[a]s to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a real danger of . . . [in]crimination." Rogers v. United States, 340 U.S. 367, 374 (1951).
Because a witness must have a reasonable belief that a disclosure could be used in a subsequent criminal proceeding, "[t]here is a presumption against blanket assertions of Fifth Amendment privilege," United States v. McAllister, 693 F.3d 572, 583 (6th Cir. 2012), and the law is clear that the privilege against self-incrimination must be asserted on a question-by-question basis. See Anton v. Prospect Cafe Milano, Inc., 233 F.R.D. 216, 218 (D.D.C. 2006), citing United States v. Argomaniz, 925 F.2d 1349, 1355 (11th Cir. 1991); see also, e.g., Doe v. Glazner, 232 F.3d 1258, 1263 (9th Cir. 2000) ("The only way the privilege [against self-incrimination] can be asserted is on a question-by-question basis, and thus, as to each question asked, the party has to decide whether or not to raise his Fifth Amendment right."); Vazquez-Rijos v. Anhang, 654 F.3d 122, 129 (1st Cir. 2011) (rejecting a litigant's argument that the Fifth Amendment privilege excused her from appearing at a deposition, holding that the "Fifth Amendment privilege `cannot be invoked on a blanket basis'"), quoting United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997).
So LeFande must sit for the deposition, and while he may assert the Fifth Amendment privilege in response to particular questions as appropriate, he must answer questions with the understanding that the danger of self-incrimination must be real, not remote or speculative. Zicarelli, 406 U.S. at 478.
II. LeFande must assert the attorney-client privilege on a question-by-question basis.
LeFande argued before the Magistrate Judge that plaintiff's allegations of wrongdoing "cannot overcome any privilege in the communications between this attorney and either Defendant." LeFande's Opp. at 11. The Magistrate Judge rejected this blanket assertion of attorney-client privilege. Magistrate Judge's Opinion at 8-9. LeFande now argues that the Magistrate Judge's decision "flies in the face" of the Supreme Court's decision in United States v. Zolin, 491 U.S. 554, 565 (1989). LeFande's Obj. at 12. Because the Court concludes that the Magistrate Judge did not commit clear error, LeFande's objections will be overruled.
"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Its purpose is "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id. The privilege "applies to a confidential communication between attorney and client if that communication was made for the purpose of obtaining or providing legal advice to the client." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 757 (D.C. Cir. 2014). A party asserting the attorney-client privilege must demonstrate that:
In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984). In short, the privilege covers communications, and not all acts undertaken on behalf of a client, and it does not cover communications that the attorney had with third parties.
The attorney-client privilege is "narrowly construed by the D.C. Circuit because of its adverse effects on the full disclosure of truth." United States v. Philip Morris Inc., 212 F.R.D. 421, 424 (D.D.C. 2002). Therefore, "[a] blanket assertion of the [attorney-client] privilege will not suffice. Rather, [t]he proponent must conclusively prove each element of the privilege." In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998).
To support his blanket assertion of attorney-client privilege, LeFande relies on the Supreme Court's decision in United States v. Zolin, but that case is largely irrelevant to this dispute. See LeFande Obj. at 12. In Zolin, the Supreme Court was faced with the question of whether a district court could review documents in camera to determine whether those documents were privileged, or whether they were subject to the crime-fraud exception. Zolin, 491 U.S. at 556-57. The Supreme Court looked to Federal Rules of Evidence 104(a) and 1101(c),
For those reasons, it is hereby