United States District Court, D. Massachusetts
INDIRA TALWANI, District Judge.
These three cases, which have been consolidated for purposes of discovery, see Electronic Order [#32], involve allegations that the Lowell Police Department, including Defendant Thomas Lafferty, used confidential informants to plant evidence on Plaintiffs. Currently at issue is a motion for a protective order by non-parties, the Middlesex District Attorney's Office and the Essex District Attorney's Office (collectively, the "DA's Offices").
In 2013, the Middlesex DA's Office learned of the Lowell Police Department's allegedly improper use of confidential informants and requested that the Essex DA's Office investigate those allegations. See Mem. Law Supp. Mot. Protective Order, 2 [#59] [hereinafter DA's Offices' Mem.]. The First Assistant District Attorney for Essex, John Dawley, and a captain in the Lowell Police Department, Thomas Kennedy, conducted the investigation. See id. at 2-3.
On December 20, 2013, Plaintiff Jonathan Santiago sent subpoenas to each of the DA's Offices requesting documents related to Dawley and Kennedy's investigation. See id. at 3. On January 3, 2014, the Middlesex DA's Office responded with a letter objecting to the subpoena served upon it by Plaintiff Santiago. See Aff. Ryan E. Ferch, Ex. 1 [#59-2] [hereinafter Ferch Aff.]. In its letter, the Middlesex DA's Office objected to each of Plaintiff's document requests, using the following language or some variation of the following language:
[M]uch of the information concerns the Lowell Police Department and is thus discoverable from it in this civil proceeding, in which the City of Lowell is named as a defendant. The DA's Office suggests that the Plaintiff exhaust other sources of discovery utilizing the Federal Rules of Civil Procedure before seeking the files of the DA's Office, which exercise likely would make the Plaintiff's request to the DA's Office superfluous. Accordingly, the DA's Office objects to this Request on the grounds that it seeks documents that are already in Plaintiff's possession or which can be obtained from some other source that is more convenient, less burdensome, or less expensive.
E.g., id. at Ex. 1, 1.
The Middlesex DA's Office's letter also objected to each request on the grounds that it was "overly broad, unduly burdensome, duplicative, vague, ambiguous, and does not contain any reasonable time limitations... and seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence." Id. at Ex. 1, 3. The letter objected further to each request on the ground that "it seeks confidential and privileged information, " including information protected by the attorney work-product doctrine, the federal law enforcement investigatory privilege, the deliberative process privilege, and the privilege for communications made to secure the enforcement of law. E.g., id. at Ex. 1, 2. The letter also objected to each request "to the extent that it potentially requests matters that occurred before the grand jury, " and finally on the grounds that each request sought information that the Middlesex DA's office was statutorily prohibited from providing. See id.
The penultimate paragraph of the letter stated that nothing therein should be "construed as a waiver of any rights, claims, ... [or] privileges held by the DA's Office." E.g., id. at Ex. 1, 9. Despite making claims of privilege, the letter did not describe the nature of the withheld documents. Instead, nothing in the objection letter suggested that the Middlesex DA's Office had reviewed its files or was setting forth anything other than boilerplate objections. See, e.g., id. at Ex. 1, 8 ("the DA's Office is continuing to review its files to identify... non-privileged documents.").
The Middlesex DA's Office copied Defendant City of Lowell (the "City") on its objection letter to Plaintiff Santiago. See id. at Ex. 1, 9. No other steps were taken to communicate with the City about the documents over which the Middlesex DA's Office wished to assert a privilege. Plaintiffs in these combined cases subsequently sought discovery from the City, and ultimately Plaintiff Santiago filed a motion to compel the City to produce the requested documents. See Pl.'s Mot. Compel Produc. Docs. Def. City Lowell [#45]. The City began producing documents on May 22, 2014, including a few of the documents at issue here. See Joint Statement Regarding Pl.'s Mot. Compel, 2 [#54] [hereinafter Joint Statement]; Pl.s' Opp'n Middlesex & Essex DA's Mot. Intervene 10 n.15 [#64] [hereinafter Pl.s' Opp'n]. On June 16, 2014, the court ordered the City to supplement its responses to Plaintiff Santiago's requests for production and, as to each request to which the City was objecting, to describe the documents being withheld with greater particularity. See Order [#55]. Thereafter, the City produced most of the documents now at issue. See Pl.s' Opp'n at 10.
On July 2, 2014-more than six months after receiving the subpoena and after the City had produced many of the documents presently at issue-the Essex DA's Office sent Plaintiff Santiago an objection letter substantially similar to that sent by the Middlesex DA's Office, with a copy to the City. See Ferch Aff. at Ex. 2. The letter noted that "the docket indicates that discovery between the Plaintiff is still ongoing as the court entered an order regarding preliminary discovery on June 16, 2014." Id. at Ex. 2, 1.
On July 8, 2014, counsel for the DA's Offices learned that the City may have produced some documents which the DA's Offices contend are privileged. See id. ¶ 5, Ex. 3. Counsel for the DA's Offices requested and received from the City copies of the correspondence to or from John T. Dawley, the First Assistant District Attorney for the Essex DA's Office, which had been produced by the City. See id. ¶¶ 7-8. Subsequently, the DA's Offices also sought and received copies of the communications to or from the Middlesex DA's Office that had been produced by the City. See id. ¶ 9.
On July 17, 2014, the DA's Offices jointly filed the instant motion, in which they claim that they hold privileges over certain of the disclosed documents and that the City's production was unauthorized. See DA's Offices' Mem. at 23.
The DA's Offices' motion asserts various qualified privileges over the documents in question. See id. at 8-23. However, because the facts of this case present a question of waiver, the court begins first by assuming that the documents at issue may have been subject to a qualified privilege and addressing whether the claimed privileges have been waived.
In their moving papers, the DA's Offices argue that disclosure by the City cannot constitute waiver because the City was not the sole privilege holder. See id. at 23. The court begins, however, not with the City's actions, but with the steps the DA's Offices took (and did not ...