Court filing

Motion to Quash Blake Hamilton’s Testimony — United States v. Baver (Dkt. 150, D. Utah)

Summary

A Motion to Quash Blake Hamilton's Testimony in United States of America v. Allison Marie Baver, Case No. 2:21-cr-00520 JNP, in the U.S. District Court for the District of Utah, dated June 16, 2023. Under Rule 45(d)(3), the defendant moves to quash the government's trial subpoena to her former counsel, R. Blake Hamilton of Dentons Durham Jones Pinegar, P.C. The motion states that Hamilton represented her from January 2022 to November 2022 and also represented Allison Baver Entertainment, LLC during about the same period. It argues that even if the information sought is not privileged, the government has not shown it lacked other means to obtain it.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Filed June 16, 2023 in Allison Marie Baver; one of 66 filings from this case.

Record facts

Court	U.S. District Court for the District of Utah
Filed	2023-06-16

Cite this document

“Motion to Quash Blake Hamilton’s Testimony — United States v. Baver (Dkt. 150, D. Utah).” U.S. District Court for the District of Utah, No. 2:21-cr-00520, Doc. 150, filed 2023-06-16. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-allison-marie-baver-utd-129379/2023-06-16-gov-uscourts-utd-129379-150-0-doc-150/, SHA-256 ca8829a8876eb33db6f8ed97626afd8659239f4aca9ee58ab4bb57ba5b57ffdb.

Full text

Case 2:21-cr-00520-JNP Document 150 Filed 06/16/23 PageID.1905 Page 1 of 4

SCOTT KEITH WILSON, Federal Public Defender (7347)
KRISTEN R. ANGELOS, Assistant Federal Public Defender (#8314)
ROBERT K. HUNT, Assistant Federal Public Defender (#5722)
OFFICE OF THE FEDERAL PUBLIC DEFENDER
DISTRICT OF UTAH
Attorneys for Defendant
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Email: kris_angelos@fd.org and robert_hunt@fd.org
_____________________________________________________________________________

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH

UNITED STATES OF AMERICA, MOTION TO QUASH BLAKE
HAMILTON’S TESTIMONY
Plaintiff,

ALLISON MARIE BAVER, Case No. 2:21-cr-00520 JNP

Defendant.

Defendant Allison Marie Baver, by and through her attorneys of record, pursuant to Rule

45(d)(3) of the Federal Rules of Criminal Procedure, hereby moves to quash the subpoena to Ms.

Baver’s former counsel of record, R. Blake Hamilton. This Motion is supported by the following

memorandum of points and authorities.

FACTUAL BACKGROUND

1. Attorney R. Blake Hamilton of the law firm Dentons Durham Jones Pinegar, P.C.,

represented Ms. Baver in this case from January 2022 to November 2022. Mr. Hamilton also

represented Allison Baver Entertainment, LLC (“ABE”) during approximately the same period.

SLC_1131539.1

Case 2:21-cr-00520-JNP Document 150 Filed 06/16/23 PageID.1906 Page 2 of 4

2. On June 1, 2023, Assistant United States Attorney Jen Muyskens sent a Supboena

to Testify at a Hearing or Trial in a Criminal Case to Mr. Hamilton.

3. Mr. Hamilton is not a witness to any of the events that underlie the charges

against Ms. Baver relating to the PPP loans.

4. Ms. Muyskens has indicated that the Government intends to call Mr. Hamilton to

testify regarding the contempt charge against Ms. Baver in order to testify regarding his

communications with ABE and/or Ms. Baver regarding a grand jury subpoena directed at ABE.

5. Neither Ms. Baver nor ABE have waived the attorney-client privilege with respect

to their communications with Mr. Hamilton.

ARGUMENT

I. TESTIMONY FROM MR. HAMILTON IS PROTECTED BY THE
ATTORNEY-CLIENT PRIVILEGE AND DUTY OF CONFIDENTIALITY,
WHICH HAS NOT BEEN WAIVED.

The attorney-client privilege protects communications made in confidence by a client to

her lawyer for the purpose of obtaining legal advice, and from lawyer to client. Rule 1.9(c) and

1.6 of the Utah Rules of Professional Conduct prevent lawyers from disclosing information

relating to the representation of a client, subject to few exceptions, unless the client gives

informed consent. Without consent from the client, a lawyer has an ethical duty to resist a

subpoena if the production.

The attorney-client privilege belongs to the client, and an attorney cannot waive that

privilege without the client’s consent. In re Vargas, 723 F.2d 1461, 1466 (10th Cir. 1983).

Counsel for Ms. Baver has informed Mr. Hamilton that Ms. Baver will not be waiving her

attorney-client privilege. ABE is currently without representation, but has not made any

2
SLC_1131539.1

Case 2:21-cr-00520-JNP Document 150 Filed 06/16/23 PageID.1907 Page 3 of 4

indication that it waives its attorney-client privilege with Mr. Hamilton. As such, Mr. Hamilton

is ethically bound not to testify in response to the subpoena.

II. TESTIMONY FROM MR. HAMILTON IS NOT ADMISSIBLE.

The Court should not permit the Government to call Mr. Hamilton as a witness because

any testimony from Mr. Hamilton will not be admissible at trial. Mr. Hamilton’s only knowledge

about this case came from his representation of Ms. Baver and ABE, and he is not competent to

testify regarding matters that he did not personally witness. Fed. R. Evid. 602.

Furthermore, compelling Mr. Hamilton to testify regarding information he gained as part

of his representation of Ms. Baver offends basic principles of justice. If this were not the case,

defendants who changed counsel would regularly be exposed to the risk that their former

attorney would be subpoenaed by the Government to testify or provide documents against them.

“In general, the practice of forcing trial counsel to testify as a witness has long been discouraged

and should be employed only in limited circumstances.” Probert v. The Clorox Company, 258

F.R.D. 491, 496 (D. Utah 2009) (internal quotations omitted).

By way of comparison, in the civil context, parties compelling testimony from opposing

counsel through a deposition is frowned upon in the Tenth Circuit, even if the attorney has

relevant, non-privileged information. See United State v. Hansen, 233 F.R.D. 665, 668 n.1

(S.D.Ca. 2005). The Tenth Circuit applies a three part test which must be satisfied in order to

depose an opposing attorney in a case: “(1) no other means exist to obtain the information than to

depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the

information is crucial to the preparation of the case.” Boughton v. Cotter Corp., 65 F.3d 823, 829

(10th Cir. 1995).

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Case 2:21-cr-00520-JNP Document 150 Filed 06/16/23 PageID.1908 Page 4 of 4

Applying these factors, Mr. Hamilton’s testimony is not admissible. All of his knowledge

regarding Ms. Baver or ABE is privileged, and even if it is not, the Government has not shown

that it does not have other means to obtain the information or that the information it seeks is

crucial to its case against Ms. Baver. For these reasons, even if the information the Government

seeks from Mr. Hamilton is not privileged, it must show that it did not have any other means to

obtain that information, which it has not done.

CONCLUSION

For these reasons, the Court should quash the subpoena for trial testimony to Mr. Hamilton.

Respectfully submitted this 16th day of June, 2023.

/s/ Kristen R. Angelos
KRISTEN R. ANGELOS
Assistant Federal Defender

/s/ Robert K. Hunt
ROBERT K. HUNT
Assistant Federal Defender

4
SLC_1131539.1

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