or" SUPERIOR COURT or THE DISTRICT or 9! CRIMINAL DIVISION -- FELONY BRANCH zuiz DEC ~u 3: 23 Co UNITED STATES OF AMERICA I i' Case No.: v. Trial Date: January 7, 2013 Judge: The Hon. Thomas Motley Next Court Date: December 14, 2012 Event: Status Hearing Defendant. I W. COLBERT, I MOTION TO QUASH OF NON-PARTY DAMON COLBERT OF THE UNITED STATES OF SUBPOENA FOR PRODUCTION OF EVIDENCE TO GOOGLE INC. 1 move to quash the subpoena for production of evidence of the United States of America that purportedly requests that Google Inc. release information pertaining to my personal email address. The Court should issue an order quashing the subpoena because: (1) the documents or i other information sought by the United States are protected by the attomey-client privilege; or i (2) the documents or other information sought by the United States are not relevant to this case. In support of this motion, I respectfully refer the Court to the attached memorandum of points and authorities. i WHEREFORE, I request that the Court: 1. grant my motion to quash the subpoena for production of evidence; and 2. grant such other and further relief as it may deem proper. 1DeCember 4, 2012 Respectfully submitted, QM/cw DAMON D. COLBERT (D.C. Bar No. 476938) 107 S. West Street PMB 567 Alexandria, Virginia 22314 (703) 594-1280 Email: damon@colbertlegal.e0m Counsel for Defendant omwdzoim om 8:5 93 83 3.28 woamomsm :25: 8 0:3: wagons? _uoE.a man. mam Eocomom 039. 2% 3:3 ea mm? 3 flown: _uo:n_ mam me?a 00:52 3. :5 C332. mfifim Ba >Bo1om. 95 .3 9% ow Umoaacmr Q3 oorwmwa 6.0 we Zo. 3983 M03. 00:32 3. SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION -- ELONY BRANCH UNITED STATES OF AMERICA i I Case No.: 2012-CFI-3958 v. I Trial Date: January 7, 2013 ELLSWORTH W. COLBERT, i Judge: The Hon. Thomas Motley Defendant. i Next Court Date: December 14, 2012 Event: Status Hearing POINTS AND AUTHORITIES Introduction This Court should quash the United States of America's subpoena for production of evidence served on Google Inc. ("Google") because Google's compliance with it would be oppressive. The documents or information to be produced are either attorney-client privileged communications or irrelevant to this case. Under Rule 17(0) of the Superior Court Rules of Criminal Procedure, this Court has the power to quash subpoenas for production of documentary evidence and of objects "if compliance would be unreasonable or oppressive." SCR-Criminal Rule 17(0). Courts generally use the following formulation in considering the standard of "unreasonable or oppressive" that requires a party seeking a subpoena for production of evidence to show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a "fishing expedition." Cooper v. United States, 353 A.2d 696, 701 (D.C. 1976). Here, because the information sought by the United States is either protected by the attomey-client privilege or not relevant to this case, it is not "evidentiary and relevant." Consequently, the first prong of the formulation is not satisfied. Factual Background Defendant Ellsworth W. Colbert Colbert") is my father and client. In October 2001, I was sworn in as a member of the Virginia State Bar. In April 2002, I was sworn in as a member of the District of Columbia Bar. Since October 2001, Mr. Colbert has sought legal advice from me on myriad matters. From time to time, I have provided legal advice to Mr. Colbert via email sent from my email address damon.colbert@gmail.com. From time to time, Mr. Colbert called my phone number, (202) 905-2855, to seek legal advice. He also left voice messages regarding legal matters using that phone number. From time to time, I have provided legal advice to Mr. Colbert via phone calls placed to and from my phone number. Both my email address and phone number are provided by Google. My email address is provided under Google's Gmail service, and my phone number is provided under Google's Google Voice service. My phone number is linked by Google to my email address. Google stores email sent to and from my email address on its servers. It also records the contents of voice messages sent to my phone number as well as SMS (text) messages sent to and from my phone number. Access to my email and phone records is password-protected. I have never disclosed any password relating to my email or phone number to any individual or entity, except for Google. On March 4, 20l2, Mr. Colbert called my phone number multiple times to seek legal advice. Since March 4, I have provided legal advice to Mr. Colbert regarding this case. I have rendered legal advice to him in person during unmonitored legal visits at the D.C. Jail. In April 2012, I complied with a subpoena requiring me to testify before the grand jury investigating, among other things, the events of March 4, 2012. During the course of my grand jury testimony, I asserted the attorney-client privilege in response to questions posed by Robert J. Feitel, counsel for the United States, regarding my communications with Mr. Colbert on and 4 before March 4, 2012. To my knowledge, the United States neither contested my assertion of the attomey-client privilege nor sought to compel my disclosure of the content of communications by seeking judicial review. At approximately 4:48 p.m. Washington, D.C., time on November 9, 2012, I entered my appearance as counsel to Mr. Colbert in this case. At 3:50 p.m. Washington, D.C., time on November 30, 2012, I received an email at damon.colbert@gmail.com from Google stating that it has received legal process from the United States Attorney's Office for the District of Columbia for information related to my email account. Google will not disclose any additional information about the subpoena, and I have not seen a copy of the subpoena. Standing to Challenge the Subpoena Although the subpoena was served on Google, I have standing to move to quash the subpoena. Courts in otherjurisdictions have reasoned that a party does not have standing to challenge a subpoena served on a third party unless a party seeks to quash based on claims of privilege, personal interest, or proprietary interest relating to documents being sought. See, Johnson v. Gmeidender, I91 F.R.D. 638 (D. Kan. 2000); Windsor v. Martindale, I75 F.R.D. 665 (D.C. Colo. 1997). This Court should adopt this reasoning. As Mr. Colbert's lawyer, I assert the attorney<