Ho-Won Jeong v. George Mason University ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Chaney, Callins and White
HO-WON JEONG
MEMORANDUM OPINION*
v. Record No. 1797-22-4 PER CURIAM
NOVEMBER 28, 2023
GEORGE MASON UNIVERSITY
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.
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.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
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
1
Jeong previously filed a complaint in 2016 in the United States District Court for the
Eastern District of Virginia that was dismissed in January 2017.
2
The Honorable Brett A. Kassabian entered the June 3, 2022 order.
3
A representative entry specified that a January 19, 2017 email from David Drummey to
Brian Walther, with a subject of “Re: revised letter,” had been withheld under the attorney-client
privilege and work-product doctrine and described the document as an “[e]mail regarding post
tenure review decision reflecting legal advice provided to client and attorney work product.”
4
From the chart, it appears that the University produced more than 1,300 pages. Still,
Jeong included only a few of the produced documents as exhibits to his filings in the circuit
court.
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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
5
Only two pages of the motion appear in the record.
6
For example, he maintained that the University “should have collected a plethora of
information and materials about interactions within the [tenure] review committee as well as its
contact with other university employees” and the University’s in-house counsel “should have
their own account, summaries, notes or memos which represent their knowledge” of the
committee’s “impressions and opinions.”
7
Lopez also provided an expert opinion for Jeong in the underlying legal malpractice
litigation.
-3-
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
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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
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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 documents over which the University had claimed privilege. Jeong
conceded, however, that he did not have “direct evidence” that the University had not complied
with the subpoena. The circuit court stated that Jeong’s filings had been “reviewed extensively.”
The circuit court also stated that it had given Jeong “extra opportunities to argue [his] case,
including affidavits and other documents that are, in essence, additional argument” beyond his
motion.
-6-
After all argument, the circuit court found that the evidence presented did not
demonstrate that the University had “failed to appropriately comply with the documents
subpoena.” In fact, the testimony of Jeong’s witnesses did not even “suggest that there was
anything that [the University] had failed to do in compliance.” The circuit court emphasized that
it had reviewed all the documents Jeong submitted, including those filed without leave of court.
The circuit court also found that nothing showed that the University improperly claimed
attorney-client privilege or attorney work-product doctrine protection. The circuit court
therefore found that the University had complied with the subpoena and the June 3, 2022 order.
Accordingly, the circuit court denied the motion by order entered October 24, 2022. Jeong
appeals.
STANDARD OF REVIEW
“Appellate courts generally review a trial court’s ruling on the ‘grant or denial of discovery
requests under an abuse of discretion standard.’” Patel v. Rabinowitz ex rel. Lakhani Assocs., LLC,
75 Va. App. 663, 669-70 (2022) (quoting Temple v. Mary Wash. Hosp., Inc., 288 Va. 134, 139
(2014)). We also apply an abuse of discretion standard to a trial court’s evidentiary rulings,
including its “decision to admit or exclude expert testimony.” Arch Ins. Co. v. FVCbank, 301 Va.
503, 515 (2022) (quoting Condo. Servs., Inc. v. First Owners’ Ass’n of Forty Six Hundred
Condo., Inc., 281 Va. 561, 575 (2011)).
A trial court can abuse its discretion in three principal ways: when it does not consider “a
relevant factor that should have been given significant weight”; when it considers and gives
“significant weight” to “an irrelevant or improper factor”; and when it considers “all proper
factors, and no improper ones,” but “in weighing those factors, commits a clear error of
judgment.” Da’mes v. Da’mes, 74 Va. App. 138, 150 (2022) (quoting Everett v. Tawes, 298 Va.
25, 40 (2019)). “Moreover, a court ‘by definition abuses its discretion when it makes an error of
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law.’” Arch Ins. Co., 301 Va. at 515 (quoting Helmick Fam. Farm, LLC v. Comm’r of
Highways, 297 Va. 777, 794 (2019)). “[O]nly when reasonable jurists could not differ can we
say an abuse of discretion has occurred.” Stark v. Dinarany, 73 Va. App. 733, 746 (2021)
(quoting Galiotos v. Galiotos, 300 Va. 1, 11 (2021)).
ANALYSIS
I. Any error in the circuit court’s ruling that it would not “hear” Jeong’s reply brief
was harmless.
Jeong argues that the circuit court abused its discretion by “invok[ing] . . . the [circuit]
court’s rules” to justify “refus[ing] to consider” his reply brief. Jeong contends that the
University referred to the reply brief, thus making the brief “part of the proceeding,” and that he
was unfamiliar with the “complex” local rules that required him to obtain leave of court.
(Emphasis omitted). Jeong also argues that his reply brief was necessary because of arguments
the University raised in its brief in opposition to his motion.
Assuming without deciding that the circuit court erred in ruling that it would consider
only Jeong’s motion,8 we find that any error was harmless. It “plainly appears from the record”
that the parties “had a fair trial on the merits and substantial justice has been reached.” Moore v.
Joe, 76 Va. App. 509, 516 (2023) (quoting Code § 8.01-678). Applying this standard, a
“non-constitutional error is harmless ‘if, when all is said and done, the error did not influence the
[factfinder], or had but slight effect.’” Spruill v. Garcia, 298 Va. 120, 127-28 (2019) (quoting
Commonwealth v. Swann, 290 Va. 194, 201 (2015) (per curiam)). Despite the circuit court’s
ruling that it would not consider Jeong’s reply brief, the record demonstrates that the circuit court
8
The doctrine of judicial restraint directs that we “decide cases ‘on the best and
narrowest grounds available.’” Commonwealth v. White, 293 Va. 411, 419 (2017) (quoting
Commonwealth v. Swann, 290 Va. 194, 196 (2015)). Therefore, we do not address the circuit
court’s ruling that Jeong had to obtain leave of court to file his reply brief and exceed the
standard page limits.
-8-
in fact reviewed and considered everything that he had filed, including the reply brief.
Therefore, any error by the circuit court in ruling that it would not consider Jeong’s reply brief
was harmless.
II. The circuit court did not abuse its discretion by declining to qualify Lopez as an
expert witness.
Jeong argues that the circuit court misunderstood the subject on which he wanted to have
Lopez testify and, even after he “corrected” its “misunderstanding,” “still insisted” that Jeong
was attempting to have Lopez “interpret” the June 3, 2022 order. (Emphasis omitted). Thus,
Jeong argues, the circuit court erroneously precluded Lopez from testifying as an expert witness
“despite [her intended testimony] being both material and relevant.”
“[I]f scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form of an opinion
or otherwise.” Code § 8.01-401.3(A); see Va. R. Evid. 2:702(a)(i). But no expert witness may
“express any opinion which constitutes a conclusion of law.” Code § 8.01-401.3(B); see Va. R.
Evid. 2:704(a).
Here, Jeong affirmed that the circuit court was “absolutely correct” in its understanding
that he sought to qualify Lopez as an expert “solely on the issue of [the University]’s
compliance” with the June 3, 2022 order. But “it is a well-established principle in our
jurisprudence that circuit courts have the authority to interpret their own orders.” Upper
Occoquan Sewage Auth. v. Blake Const. Co., Inc./Poole & Kent, 275 Va. 41, 61 (2008).
The circuit court had to consider whether the University had complied with the June 3,
2022 order, and the circuit court did not abuse its discretion in finding that Lopez’s testimony
would not assist it in “understand[ing] the evidence” or “determin[ing] a fact in issue.” Code
§ 8.01-401.3(A); see Va. R. Evid. 2:702(a)(i). The circuit court did not need expert testimony to
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assess whether the University had complied with the obligations imposed by the June 3, 2022
order. Indeed, the circuit court could not have allowed Lopez to testify whether the University
had complied with the June 3, 2022, order as her opinion on that issue would have been an
impermissible “conclusion of law.” Code § 8.01-401.3(B); see Va. R. Evid. 2:704(a).
Therefore, the circuit court did not abuse its discretion by declining to qualify Lopez as an expert
witness.
III. The circuit court did not abuse its discretion by refusing to admit Exhibits 3, 8, 9,
10, and 10A.
Jeong argues that the circuit court “erroneously denied” evidentiary value of certain
exhibits. Jeong contends that the exhibits presented facts demonstrating that the University’s
production was “inadequate” and that the circuit court did not “properly review” the exhibits,
“refused to consider” them, and improperly excluded them from evidence. (Emphasis omitted).
Hearsay “is not admissible” unless an exception applies. Va. R. Evid. 2:802. Hearsay is
defined as “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Va. R. Evid. 2:801.
Additionally, “a hearsay declaration containing a statement of opinion must, to be admissible,
satisfy the requirements of both the rule prohibiting admission of hearsay and the rules restricting
the expression of opinion by witnesses.” Gelber v. Glock, 293 Va. 497, 513 (2017) (quoting
Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia § 15-1[d], at 905 (7th ed.
2012)).
We assume without deciding that Jeong’s two assignments of error dealing with the
exhibits fairly encompass his argument that the circuit court erroneously excluded them from
evidence. The circuit court’s description of the exhibits as “essentially, briefs [or] arguments” is
fitting. The record reflects that the proffered exhibits do not contain evidence. Instead, they
contain Jeong’s assertions, arguments, and statements of belief.
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Any factual statements within the exhibits were inadmissible hearsay because Jeong
offered them for their truth and did not identify any exception rendering them admissible as
required by Rule 2:802. See also Atkins v. Commonwealth, 68 Va. App. 1, 7-8 (2017).
Any opinions within the exhibits also were inadmissible. Gelber, 293 Va. at 513.
Finally, arguments are not evidence. See Comm’r of Highways v. Karverly, Inc., 295 Va. 380,
393 n.19 (2018) (citing Friend & Sinclair, supra, § 1-4[i], at 32); see also Goldman v.
Commonwealth, 74 Va. App. 556, 566 (2022) (noting “[t]here is no indication that the
Commonwealth intended this statement [that had not been introduced into evidence] as evidence,
nor could the Commonwealth properly do so since the statement was made by the prosecutor and
not by a witness”). The circuit court properly ruled that Jeong’s exhibits, which contained
arguments, were inadmissible. Accordingly, we find no error.
IV. The circuit court did not abuse its discretion by denying in camera review or
refusing to allow Jeong to question the University’s counsel.
Jeong argues that the circuit court improperly denied his request for an in camera review
of the documents that the University withheld or redacted. Jeong contends that the University
“failed to provide adequate information needed to determine how each specific communication is
privileged.” Jeong points to five emails and an attachment, dated August 1 and August 5, 2016,
withheld by the University that he believes are representative of the University’s failure to prove
that the privilege applied. He contends, “based on [his] analysis of related communications, that
the discussion [in the emails] focuses on a process to produce the committee’s initial report.”
Yet, he argues, the privilege log “simply” described each email as seeking “legal advice
regarding post-tenure review” and the document was a draft “document provided to counsel for
legal review and advice.” Jeong contends that these log entries do not provide “any information
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whatsoever.”9 He claims that the circuit court “simply chose to accept” the “bald assertions” by
the University’s counsel at the hearing without the University “having introduced any evidence
to support its claims,” and asserts that his evidence gave him a “prima facie entitlement” to an in
camera review. (Emphasis omitted). Jeong also challenges the circuit court’s ruling preventing
him from questioning Drummey, the University’s in-house counsel and a counsel of record at the
hearing and contends that he intended to ask Drummey factual questions about the
“inapplicability of attorney-client privilege and work product.” (Emphasis omitted).
Under Virginia law, “[c]onfidential communications between attorney and client made
because of that relationship and concerning the subject matter of the attorney’s employment ‘are
privileged from disclosure, even for the purpose of administering justice.’” Castillo v.
Commonwealth, 70 Va. App. 394, 429 (2019) (alteration in original) (quoting Commonwealth v.
Edwards, 235 Va. 499, 508-09 (1988)). “The privilege attaches . . . even if the document does
not contain, or is not accompanied by, a written request for legal advice, if the proponent of the
privilege sustains its burden of proof to show that the document was prepared” to receive “legal
advice on its contents.” Va. Elec. and Power Co. v. Westmoreland-LG & E Partners, 259 Va.
319, 326 (2000). Moreover, “[c]ommunications between officers and employees of the same
entity relayed to corporate counsel for the purpose of obtaining legal advice are entitled to the
9
Jeong also asserts that the “record shows that” the University often “arbitrarily
redacted” emails “despite the absence of any possible legal advice to be relayed” and that the
“unredacted part of the same communications” do not demonstrate “any need for legal advice” or
“indicate[] the actual existence of privileged legal content.” (Emphasis omitted). Yet, Jeong
does not identify any email he believes the University improperly redacted. Jeong similarly
argues the necessity of legal advice for various university personnel, and challenges again
unspecified emails as having been improperly withheld or redacted.
It is not “this Court’s ‘function to comb through the record . . . to ferret-out for ourselves
the validity of [appellant’s] claims.’” Alwan v. Alwan, 70 Va. App. 599, 612 (2019) (alterations
in original) (quoting Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012)). Jeong has not
identified the documents he believes were improperly withheld under a claim of privilege or
work-product doctrine and, therefore, we do not consider these arguments.
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attorney-client privilege.” Id. A party asserting the privilege “has the burden to establish that
the attorney-client relationship existed, that the communications under consideration are
privileged, and that the privilege was not waived.” Castillo, 70 Va. App. at 429. If a party
withholds information under the attorney-client relationship, the party must expressly claim
privilege and “describe the nature of the documents, communications, or things not produced or
disclosed in a manner that, without revealing information itself privileged or protected, will
enable other parties to assess the applicability of the privilege or protection.” Rule 4:1(b)(6)(i).
Additionally, Rule 4:1(b)(3) shields from disclosure otherwise discoverable documents
that were “prepared in anticipation of litigation or for trial” unless the requesting party shows
“substantial need of the materials in the preparation of his case and that he is unable without
undue hardship to obtain the substantial equivalent of the materials by other means.” Even then,
however, a trial court “must protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party concerning the
litigation.” Rule 4:1(b)(3).
The University expressly asserted the privilege and produced privilege and redaction logs
that followed the applicable rule. See Rule 4:1(b)(6)(i). Those logs detailed the sender,
recipient, date, subject line, and a description of each document withheld or redacted, sufficient
to allow Jeong and the circuit court to assess whether the privilege or doctrine applied to the
withheld information and whether the privilege had been waived. See Banks v. Mario Indus. of
Va., Inc., 274 Va. 438, 454 (2007) (holding that an employee waived attorney-client privilege for
a document created on his employer’s computer where he had “no expectation of privacy”). The
record demonstrates that the circuit court did not “simply . . . accept” the “bald assertions” of the
University’s counsel at argument that it had not improperly withheld otherwise-discoverable
information by asserting the attorney-client privilege or attorney work-product doctrine. Instead,
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the circuit court examined the privilege and redaction logs and considered the arguments and
evidence presented at the hearing. It then found that the University had met its burden of
establishing that the attorney-client relationship existed. Furthermore, the circuit court found
that the privilege or doctrine applied to each document at issue, and the University had not
waived the privilege or protection of the doctrine.
Finally, the record demonstrates that Drummey was counsel of record for the University
at the hearing and an in-house counsel both during the events relevant to the underlying litigation
and during its production of documents to Jeong under the subpoena duces tecum and June 3,
2022 order. The circuit court gave Jeong an opportunity to explain what non-privileged
information Drummey might be able to provide. But Jeong merely stated his belief that
Drummey had “information about [Jeong]’s post-tenure review and termination” and that various
information he believed could be revealed was “critical” to his ability to prove his malpractice
case. The circuit court properly found that the University proved that the attorney-client
privilege and work-product doctrine as it covered Drummey’s emails.
V. The circuit court did not abuse its discretion by denying Jeong’s motion and
finding that the University had complied with the June 3, 2022 order.
Finally, Jeong argues that the circuit court abused its discretion by ruling that the
University had complied with the subpoena and June 3, 2022 order. Jeong contends that the
circuit court “failed to properly consider or examine all the relevant facts and evidence,” relied
on the University’s arguments rather than the examination of evidence, and wrongly decided that
the University had complied with the June 3, 2022 order.
Jeong presented the circuit court with testimony from three factual witnesses: James
Pfiffner, professor emeritus and member of the post-tenure review committee; Renate Guilford,
provost and vice president for academic administration; and Sharon Cullen, director of
presidential administration. Pfiffner testified that he “searched” his work computer and files and
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provided “all” the “emails and documents” he found to the University counsel. Guilford testified
that “any documents” or “communications” she had “would have been given to” the University
counsel, even though she had not been “involved in the process” of Jeong’s post-tenure review.
Cullen testified that she and others in the president’s office “did a thorough search” and provided
all relevant documents to the University counsel. Jeong presented no testimony or documentary
evidence that the University had, without claiming attorney-client privilege as indicated on a
privilege log, improperly withheld any documents that responded to the subpoena. Likewise, he
presented no testimony or documentary evidence that the University had withheld or redacted
documents under an improper claim of attorney-client privilege or attorney work-product
doctrine.
Given the evidence and arguments presented to the circuit court, we cannot say that the
circuit court abused its discretion by finding that the University had complied with the June 3,
2022 order and denying Jeong’s motion to compel. See Stark, 73 Va. App. at 745-46.
VI. The circuit court judge did not abuse his discretion by not recusing himself sua
sponte.
Jeong argues that the circuit court judge should have recused himself because he had a
“paid employment relationship” as an “adjunct professor” at the University and had served on a
task force of the University’s law school. (Emphasis omitted). Jeong asserts that the circuit
court judge was not assigned until the morning of the motion hearing and therefore that Jeong
did not have an “opportunity” to move for recusal.10 He contends that the circuit court judge
10
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The Court may only
invoke the ‘good cause’ exception where an appellant did not have the opportunity to object to a
ruling in the trial court; however, when an appellant ‘had the opportunity to object but elected
not to do so,’ the exception does not apply.” Perry v. Commonwealth, 58 Va. App. 655, 667
(2011) (quoting Luck v. Commonwealth, 32 Va. App. 827, 834 (2000)).
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should have disclosed his “professional ties” with the University at the beginning of the hearing
“so that Jeong would have had an opportunity to leave an objection on the record.”
We also apply an abuse of discretion standard when reviewing a trial court’s recusal
decision. Prieto v. Commonwealth, 283 Va. 149, 163 (2012). “A judge must recuse . . . in a
proceeding in which the judge’s impartiality might reasonably be questioned.” Canon of Judicial
Conduct 1(D)(1). As relevant here, a judge must recuse himself if he is aware of “a personal bias
or prejudice concerning an issue, a party or a party’s lawyer, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” Canon of Judicial Conduct 1(D)(1)(a). Also, a
judge must recuse himself if he knows that, “individually or as a fiduciary,” he “has an economic
interest in the subject matter in controversy or in a party to the proceeding, or has more than a de
minimis interest that could be substantially affected by the proceeding.” Canon of Judicial
Conduct 1(D)(1)(f). Finally, a judge must recuse himself if he is “an officer, director, or trustee
of a party.” Canon of Judicial Conduct 1(D)(1)(g)(i).
“The burden of proving a judge’s bias or prejudice lies with the party seeking recusal.”
Prieto, 283 Va. at 163. Further, a “purported violation of the Canons alone is not enough to
mandate reversal.” Commonwealth v. Jackson, 267 Va. 226, 229 (2004). Instead, “[i]n the
absence of proof of actual bias, recusal is properly within the discretion of the trial judge.” Id.Here, Jeong has not demonstrated that the circuit court judge exhibited bias or prejudice.
To the contrary, the record demonstrates that the circuit court judge afforded Jeong “extra
opportunities” to argue his motion, extended him leeway in questioning witnesses, and otherwise
treated him impartially and respectfully. Nor does the record demonstrate that the circuit court
judge had any “economic interest in the subject matter in controversy or in a party to the
proceeding . . . more than a de minimis interest that could be substantially affected by the
proceeding,” or was “an officer, director, or trustee of a party.” Canon of Judicial Conduct
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1(D)(1)(f), (g). Therefore, whether recusal was appropriate lay within the circuit court’s
discretion. Assuming without deciding that Jeong invoked the “good cause” exception to Rule
5A:18, we hold that the circuit court judge did not abuse his discretion by failing to recuse
himself sua sponte or disclose the adjunct professorship.
CONCLUSION
The record demonstrates that the circuit court considered the evidence and arguments
before it and properly exercised its discretion in each of the challenged rulings. Because the
record supports the circuit court’s rulings, therefore we affirm its judgment.11
Affirmed.
11
Our disposition of the appeal moots Jeong’s motion, filed April 14, 2023, asking that
this Court provide him an estimated time frame for deciding his appeal and, therefore, we do not
address it.
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