Ho-Won Jeong v. George Mason Univ.
| Docket Number | 1797-22-4 |
| Decision Date | 28 November 2023 |
| Parties | HO-WON JEONG v. GEORGE MASON UNIVERSITY |
| Court | Virginia Court of Appeals |
1
HO-WON JEONG
v.
GEORGE MASON UNIVERSITY
No. 1797-22-4
Court of Appeals of Virginia
November 28, 2023
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Manuel A. Capsalis, Judge
(Ho-Won Jeong, on briefs), pro se.
(David Garnett Drummey, Senior Assistant Attorney General; Eli S. Schlam, Assistant Attorney General, on brief), for appellee.
Present: Judges Chaney, Callins and White
MEMORANDUM OPINION [*]
PER CURIAM
Ho-Won Jeong, pro se, challenges the circuit court's order denying his motion to compel a subpoena duces tecum directed to George Mason University ("the University"). Jeong contends that the circuit court abused its discretion (1) in finding that the University had complied with an earlier order, (2) in excluding expert testimony, (3) in refusing to admit certain exhibits, (4) in preventing testimony of the University's in-house counsel, and (5) in denying his request for in camera review of documents withheld or redacted under claims of the attorney-client privilege or attorney work-product doctrine. Jeong also contends that the circuit court judge was required to recuse himself. After examining the briefs and record, the panel holds that oral argument is unnecessary because "the appeal is wholly without merit." Code § 17.1-403(ii)(a); Rule 5A:27(a). Finding no abuse of discretion, we affirm.
BACKGROUND
In 2018, Jeong filed a complaint in the United States District Court for the Eastern District of Virginia after being terminated from a tenured professorship at George Mason University in 2017; that complaint was dismissed in 2018.[1] In June 2021, Jeong, pro se, filed a complaint in the Superior Court of the District of Columbia (the D.C. court) alleging legal malpractice by his former counsel that caused the dismissal by the United States District Court for the Eastern District of Virginia. In March 2022, Jeong obtained a subpoena duces tecum directed to the University under the Uniform Interstate Depositions and Discovery Act, Code §§ 8.01-412.8 through -412.15.
On June 3, 2022, the Circuit Court of Fairfax County partially quashed the subpoena.[2]On June 22, 2022, the University delivered to Jeong documents responsive to the remaining parts of the subpoena and completed its document production. The University also produced a privilege log with the date, the sender and recipient, subject, and a brief description for each document withheld under a claim of the attorney-client privilege or attorney work-product doctrine.[3] The University produced a redaction log that described each redacted document and specified the basis for the redaction. In follow-up correspondence, the University provided Jeong with a chart identifying how each produced document responded to the subpoena request.[4]
In September 2022, Jeong moved to enforce compliance with the June 3, 2022 order, which the circuit court treated as a motion to compel discovery.[5] Jeong asserted that the University had "purposefully and negligently withheld many responsive communications and documents." Jeong also argued that the University improperly withheld documents under claims of attorney-client privilege or attorney work-product doctrine, and he listed several documents included in the University's privilege log that he believed should have been produced. Throughout his motion and several exhibits, many of which contained further argument, Jeong repeatedly asserted that the University "should" or "must have" had possession of certain documents.[6]
The University opposed the motion, and Jeong replied. At the evidentiary hearing, the circuit court found that Jeong's filing was "voluminous" and he had not received leave of court to exceed the court's five-page limit or to file a reply brief. The circuit court initially ruled that it would consider only Jeong's motion and that he needed leave of court to file the exhibits and reply brief. Later, however, the circuit court stated that "even though [Jeong] did not comply with" the circuit court's rules, it had reviewed everything that he had filed.
At the hearing, Jeong offered Rosanna Lopez, a licensed attorney, as an expert witness on discovery matters.[7] The University objected and argued that expert testimony was unnecessary because "discovery matters" were "squarely within" the circuit court's expertise. The circuit
court then denied Jeong's request to qualify Lopez as an expert witness because it did not "need an expert opinion to determine whether [the University] complied [with] or to interpret" the June 3, 2022 order.
Jeong next called James Pfiffner, a professor emeritus at the University and a member of Jeong's post-tenure review committee. Pfiffner testified that he had given all of his emails and documents to the University counsel. Renate Guilford, the University's provost and vice president for academic administration at the time of the hearing, testified for Jeong that she had not been involved in the process of the post-tenure review, but any documents or communications she had would have been given to the University counsel. Sharon Cullen, the director of presidential administration, testified that the University counsel had asked for all documentation within the president's office and she and others in the office "did a thorough search" and provided all the documents to the University counsel.
Jeong attempted to question David Drummey, the University's in-house counsel and one of its counsels of record at the hearing. Jeong proffered that Drummey had critical information, which no one else had, about Jeong's post-tenure review and termination. The circuit court found that Jeong's proffer went "to the very heart" of attorney-client privilege and the attorney work-product doctrine and ruled that Jeong could not question Drummey regarding his work as an attorney in this case.
Jeong offered into evidence documents that had been attached to his motion as Exhibits 3, 8, 9, and 10. The University objected to their admission, describing them as an "additional" argument, an "affidavit," and a "chronology" Jeong had created.
The first paragraph of Exhibit 3 asserted that the University "withheld or completely blackened or heavily redacted all the substantive email communications and documents" that Jeong needed "to prove that he was terminated for fabricated reasons manufactured by a
fraudulent post[-]tenure review process." (Emphasis omitted). It contained Jeong's assertions that the University did not produce "any information related to the [post-tenure review] committee's own discussion regarding the grievance committee report sent to them by Jeong" or "any committee emails with the university in-house counsel," over which the University asserted "a privilege claim." In Exhibit 3, Jeong also asserted that the University "should have collected a plethora of information and materials about interactions within the review committee as well as its contact with other university employees, for instance, between December 2016-January 2017 and May 2018."
Exhibit 8 asserted that it "illustrates trickeries and other deceptive tactics" the University used "to defy" the June 3, 2022 order. The rest of the exhibit contained statements by Jeong giving examples of perceived deficiencies in the University's production. Certain headings included "Repetitions of Non-substantive Documents," "Repeated Production of Official Documents," and "Production of Documents only in [Jeong]'s Possession."
Exhibit 9 stated that it "incorporates communications either produced" by the University or in Jeong's possession. The exhibit depicted "why [the University] should produce all communications either redacted or denied by the university in-house counsel with the claim of privilege." The rest of the document contained excerpts quoted from various emails produced by the University to Jeong where Jeong italicized and bolded for emphasis and added commentary about certain emails.
The first 21 pages of Exhibit 10 contained Jeong's statement of "issues, facts and evidence that clearly show how [the University] has refused to comply with" the June 3, 2022 order. The next 32 pages, labeled Exhibit 10A, contained excerpts from a hearing transcript in the 2018 litigation, briefs filed by the University in that litigation, and Jeong's comments about
the transcript and briefs. But many of Jeong's statements related to his termination from the University, not its production of documents.
The University again objected to their admission, asserting that they were "hearsay" and "essentially [Jeong's] argument." The University also objected because the documents contained "a lot of speculation" about what the University knew to be true. The circuit court asked Jeong if he had any other evidence in support of his motion, and Jeong replied that he did not. The circuit court found that the exhibits were, "in essence, briefs," and did not admit them into evidence.
During argument, the University maintained that it conducted an extensive search by identifying "the relative custodians" of potentially-responsive documents and by requesting documents from various departments and offices within the University. The University's counsel reviewed the collected documents and produced each document that responded to Jeong's subpoena. Counsel for the University represented to the circuit court that there were no documents that the University had identified as responsive that were not produced or withheld under a claim of privilege and appropriately noted on a log.
After argument by Jeong and the University's counsel, the circuit court found that Jeong's witnesses testified that "they produced all documentation," and gave Jeong an opportunity to identify specific documents that the University had not produced. Jeong did not directly respond but repeated some of his previous arguments before asking the circuit court to review in camera the...
To continue reading
Request your trial