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Rose speaks » John O’Quinn files Memorandum of Law to protect Wilma Vicedomine from Deposition. Did Judge Chin’s July 2 Order have more to do with Wilma’s deposition and not Larry Birkhead? 
Sun, Jul 20
I am just going to put excerpts up for now from the Memorandum of Law filed by John O’Quinn in the Southern Florida Court to protect Wilma Vicedomine from a deposition in the Florida case. After you read this let us know, what you think is happening in the New York case about a deposition of Wilma and Don Clark. ___________________________________________ In this instance, Ms. Vicedomine has never been offered as a witness in this cause by the defendants. To the contrary, as the plaintiff himself notes, Mr. O’Quinn had never even heard of Ms. Vicedomine when his jurisdictional deposition was taken in this case in July of 2007. (Nor has she been listed as a witness by O’Quinn.). Clearly, therefore, O’Quinn has no intention of testifying that he relied upon any information that was provided directly to him by Ms. Vicedomine when he spoke with the media in February and March of 2007. Here, there is no suggestion that O’Quinn relied upon any of Ms. Vicedomine’s work-product in speaking with the press. Unless or until that becomes a legitimate issue in this case, therefore, the work-product privilege should remain intact. Here, Ms. Vicedomine’s investigation has not been placed in issue; Mr. O’Quinn never spoke with her. See O’Quinn’s Response to Plaintiff’s First Set of Continuing Interrogatories at No.8 (p.23) (“Other than media interviews, any information that I had received would have come directly from our own in-house investigator, Don Clark.”). Thus, while Stern argues that Ms. Vicedomine’s investigation should be treated the same as Mr. Clark’s own work-product simply because she worked with Clark on the investigation, that claim alone is insufficient to overcome the work product privilege that applies to Ms. Vicedomine’s investigation. Once again, there has been no suggestion in this cause that Mr. O’Quinn used any specific portions of Ms. Vicedomine’s investigation to support testimony that he has given in this cause. Stern also cites cases which suggest that opinion work-product may be discoverable when the attorney’s mental impressions are at issue in the case. See Holmgren v. State Farm Mut. Auto Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992); Harding v. Dana Transp., Inc., 914 F. Supp. 1084 (D. N.J. 1996); Hartman v. Banks, 164 F.R.D. 167, 170 (E.D. Pa. 1995). Those decisions have been criticized in many jurisdictions, and have not been adopted in Florida. Stern claims that Vicedomine herself waived the work-product protection concerning her investigation for O’Quinn by revealing details of her investigation in conversations over the internet and in conversations with Rita Cosby. While O’Quinn agrees that this type of disclosure may occasion a waiver, any waiver on these grounds would be “limited to the information actually disclosed, not subject matter waiver.” Continental Cas. Co. v. Under Armour, Inc., 537 F. Supp.2d 761, 773 (D. Md. 2008) (cited by Stern in his Opposition Memo at p. 19); see also, Niagara Mowhawk Power Corp. v. Sten & Webster Eng’g Corp., 125 F.R.D. 578, 590 (N.D. N.Y. 1989) (also cited by Stern). The appropriate application of this limited waiver thus directly contradicts Stern’s broad contention that “Vicedomine waived any work-product privilege that may have existed for the investigation.” See Opposition Memo at p. 19 (emphasis added). Thus, the only information for which the work-product privilege may have been waived are the actual facts that Vicedomine revealed in statements made to Rita Cosby which were published in Blonde Ambition, or statements actually – not allegedly – posted by Vicedomine on the internet. Since that information is already available to Stern (or anybody else who seeks it out) online or in Blond Ambition, Stern should not be allowed to depose Vicedomine in order to discover the full gamut of her work-product. This same information is also available from the original sources who may have provided Ms. Vicedomine with information that was ultimately imparted to Ms. Cosby. Thus, and to the extent that Ms. Cosby has specifically identified individuals who purportedly provided information to Ms. Vicedomine during her deposition, or made note of those individuals in the book Blond Ambition itself, Mr. Stern is certainly at liberty to depose those individuals to confirm the statements or information which was reportedly attributed to them by Ms. Vicedomine. See Deposition Transcript of Rita Karen Cosby, dated November 15, 2007 (“Cosby Depo”) at 107, 164, 165-166. While Stern may argue that it will impose an undue hardship for him to obtain that information from these other sources, “in the ordinary case, the cost of one or a few depositions is not enough to justify discovery of work-product.” Furthermore, any waiver of work-product protection allegedly occasioned by Vicedomine with regard to any investigation that she performed on behalf of the O’Quinn Firm would not affect a waiver on the part of Virgie Arthur, O’Quinn’s client in the related litigation.. Thus, since Virgie Arthur has not waived this protection, it would still apply to prevent Stern from deposing Ms. Vicedomine, regardless of whether or not there has been some kind of limited waiver occasioned by Ms. Vicedomine’s disclosures. With all due respect to Mr. Stern’s position in this matter, Defendants would suggest that this motion might not have been necessary had Mr. Stern not attempted to use an overly broad subpoena to seek documentation which clearly includes the Firm’s work-product. It might also have been possible to resolve some of these issues had Stern not advanced the proposition that virtually all of the Firm’s investigation is now subject to full disclosure merely because Mr. O’Quinn has relied in part upon information that he received from his investigator when speaking with the press, or because individuals who were investigating this matter on behalf of the Firm spoke with a third party concerning the results of limited portions of their investigation. Pick up a copy of this Memorandum of Law here. In addition, there are nine other documents in this case ready to download and they are listed on our front page. ©Rose Turner July 11, 2008 All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author. This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners. Please also read our Terms of Use and our Privacy Policy. Copyright©2008 Rose Turner. All Rights Reserved This entry was posted on Friday, July 11th, 2008 at 10:27 pm and is filed under All Things Anna Nicole Smith, Anna Nicole Smith, Celebrity Trials, Daniel Smith, Daniel Smith's Inquest, Dannielynn, Debunking the myths on ALL cases related to Anna Nicole, Don Clark, Don Clark ex-FBI, Howard K Stern, Howard and Anna, John O'Quinn, Krista Barth, Lin Wood, Luke Lantta, Neil McCabe, O'Quinn's Don Clark Ex-FBI, Rita Cosby, Rose Speaks, Rose Turner, Virgie Arthur, Wilma Vice, Wilma Vicedomine, rosespeaks.com. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
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