United States District Court, D. Massachusetts
THIRD ORDER ON: 1) PLAINTIFF'S MOTION FOR ORDER TO PRODUCE SUBPOENAED RECORDS FORTHWITH, OR TO SHOW CAUSE WHY THE KEEPER OF RECORDS OF THE SUFFOLK COUNTY DISTRICT ATTORNEY'S OFFICE SHOULD NOT BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH SUBPOENA (#53); and 2) KEEPER OF RECORD'S MOTION TO QUASH OR MODIFY SUBPOENA (#55)
DONALD L. CABELL, District Judge.
This is the third and final order on (1) Plaintiff Herbert Davis's motion for an order to produce subpoenaed records and (2) non-party the Keeper of Records of the Suffolk County District Attorney's Office's ("the D.A.'s Office") cross-motion to quash. The Court's first two orders resolved the bulk of the issues raised in the motions, leaving only the question of which of the documents withheld as privileged by the D.A.'s Office should be produced. All of the disputed documents are currently in the possession of counsel for the parties, subject to a protective order limiting their use. The Court has considered the parties' briefs, the law, and reviewed the actual documents in question. As a result, and as explained below, the Court now orders that certain of the documents be freed from the limitations of the protective order and made available for use in the discovery and trial of this case. Other documents which are privileged without a counterbalancing compelling need for their use shall be returned to the D.A.'s Office or destroyed.
This is a civil rights case brought under 42 U.S.C. § 1983. The plaintiff alleges false arrest, due process violations, malicious prosecution and false imprisonment. (Dkt. No. 1) The plaintiff was arrested after a confidential informant told the Boston Police that the plaintiff had offered to sell the informant assault weapons and cocaine. The plaintiff was subsequently released approximately four months later after the commonwealth turned over a video of the transaction which demonstrated that the plaintiff was not the person with whom the informant dealt. ( Id. ) The D.A.'s Office thereafter decided it would not prosecute the case. ( Id. )
Defendants Paul W. Murphy, Stephen M. Meade and Stephen C. McManus (collectively, "the defendants") are all officers of the Boston Police Department. ( Id. ) They dispute the plaintiff's characterization of the investigation that led to the plaintiff's arrest, the nature of the defendants' involvement in that investigation and the defendants' awareness of the existence of the video exculpating the plaintiff, among other things. (Dkt. Nos. 11-13)
A. The Plaintiff's Subpoena and Related Discovery Motions
On November 14, 2014, the plaintiff served a subpoena on the D.A.'s Office, a non-party, seeking documents related to the criminal case against the plaintiff. (Dkt. No. 53-2) The D.A.'s Office requested and received an open-ended extension of the subpoena response deadline. (Dkt. No. 56-3) In early December, the plaintiff, through a new attorney, took the position that the extension granted was for production of documents only and that the D.A.'s Office had waived objections by not serving a written response by the original return date for the subpoena. (Dkt. No. 56-5)
On December 28, 2014, the plaintiff filed a Motion to Compel Production or Show Cause Why the Keeper of Records of the D.A.'s Office Should Not Be Held in Contempt. (Dkt. No. 53) The D.A.'s Office opposed that motion and filed its own Motion to Quash or Modify Subpoena. (Dkt. No. 56)
B. The Court's First Order
On December 31, 2014, the Court issued an order setting a hearing date for the motions and directing the D.A.'s Office to make its production, serve a privilege log, and file an affidavit stating the steps it had taken to comply with the subpoena. The D.A.'s Office filed an affidavit explaining its document collection and review process but it did not serve a privilege log. (Dkt. No. 59) Ultimately, the D.A.'s Office did identify a universe of responsive documents; it produced some of them and withheld others on the basis of privilege.
C. The Court's Second Order
On January 13, 2015, the Court issued an order finding that the D.A.'s Office had not waived its privilege objections. The Court directed the D.A.'s Office to serve copies of the withheld documents for the limited purpose of litigating whether they should in fact be deemed privileged. (Dkt. No. 60.) The D.A.'s Office did so and the parties in turn filed briefs identifying 36 potentially privileged documents they would like to use in this case. (Dkt. Nos. 68 and 69) The D.A.'s Office has filed an opposition. (Dkt. No. 70) Thus, the issue to be decided is which if any of the disputed documents the D.A.'s Office should be required to produce for use in this case.
II. LEGAL STANDARD
As the party "resisting discovery, " the D.A.'s Office has the burden of establishing that the documents at issue are privileged or otherwise protected from discovery. Stamps v. Town of Framingham, 38 F.Supp. 3d 134, 140 (D. Mass. 2014)(citing FDIC v. Ogden Corp., 202 F.3d 454, 460 (1st Cir. 2000). The D.A.'s Office argues that the documents are protected by either (1) the deliberative process privilege, (2) the work product doctrine, or (3) the investigative privilege. In addition, the D.A.'s Office contends that criminal records the plaintiff seeks are restricted from disclosure by state law. As discussed below, these protections are not absolute and a party may obtain ...