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Davis v. Murphy

United States District Court, D. Massachusetts

August 24, 2017

HERBERT DAVIS, Plaintiff,
v.
PAUL W. MURPHY, STEPHEN M. MEADE, and STEPHEN C. McMANUS, Defendants.

          MEMORANDUM & ORDER

          Indira Talwani, United States District Judge.

         Currently pending before this court is Plaintiff Herbert Davis' Motion to Compel [#159]. Plaintiff seeks an order from this court compelling the Suffolk County District Attorney's Office (the “D.A.'s Office”) to produce six documents responsive to a December 2016 Subpoena. The D.A.'s Office asserts in its Opposition to Plaintiff's Motion to Compel [“D.A.'s Opp'n”] [#162] that the documents are protected under the work product doctrine.[1]

I. Background

         In December 2016, with this court's authorization, see Elec. Order [#130], Plaintiff issued a subpoena to the D.A.'s Office seeking documents relating to confidential informant Darren Sheridan. Mot. Compel 1 [#159]. In addition to producing what it concluded were responsive, non-privileged materials, the D.A.'s Office also provided Plaintiff with two privilege logs, on February 21, 2017, and June 30, 2017. D.A.'s Opp'n, Exs. 1-2 [#162-1, #162-2]. Plaintiff has challenged the privilege designation for six of those documents. The six documents pertain to Commonwealth v. Peete, SUCR2010-10628, and Commonwealth v. Carter, SUCR2010-10629, two cases close in time to the events at issue here, and in which confidential informant Darren Sheridan was involved. Although the documents are undated, based on counsel's representations, it appears as though the documents graft onto the larger chronology of the alleged events as follows:

. On April 22, 2010, Defendant Stephen C. McManus assisted the Federal Bureau of Investigation in orchestrating a controlled buy of narcotics from Shawn Peete and Terry Carter, using Darren Sheridan as a confidential informant. Mot. for Disc, Ex. 4, at 8 [#123-4]. Sheridan was provided with $2, 500 of buy money. Id. Although no exchange of narcotics took place, Peete and Carter took the buy money from Sheridan. Id. at 8-9. Only $2, 050 of the buy money was recovered-the remaining $450 was never found. Id at 9.
. Thereafter, but prior to the issuance of Peete and Carter 's indictments on June 21, 2010, an Assistant District Attorney apparently authored the first document at issue here, an undated, internal memorandum regarding the Peete and Carter prosecutions, bearing Document ID Numbers Case A000004-06; CaseA000010-12; CaseA000033-35; CaseA000311-13.
. In August 2010, Defendants and other law enforcement officers began investigating a possible firearm sale by Plaintiff. Mot. for Disc. 3 [#123].
. On September 23, 2010, after Sheridan identified Plaintiff for a gun and drug transaction, and then purportedly captured that transaction by video and audio device, Defendants arrested Plaintiff. First Am. Compl. ¶¶ 3, 14, 17-18 [#108]; Pl.'s Opp'n to Dist. Attorney's Mot. to Quash 3 [#58]; Pl.'s Opp'n to Dist. Attorney's Mot. to Quash, Ex. 2, at 3 [#58-2]. The police immediately executed a search warrant, but $3, 100 of the government's buy money was not found. Id at 6.
. On January 20, 2011, Assistant District Attorney Brian Fahy stated at a hearing on a motion to compel production of the September 23, 2010, videotape that he wanted to be sure about the cooperating witness's safety before giving the video out, that he had reviewed the video, and that he thought he had “either four or five additional cases that mirror this similar type of an operation, all with that same officer, Detective McManus from Boston Police . . . .” Id. at 10:14-24. The state was ordered to produce the video. First Am. Compl., ¶ 40 [#108].
. Sometime after Plaintiffs arrest, but before his release from custody, Assistant District Attorney Fahy authored the sixth document at issue here, an undated, internal memorandum to Assistant District Attorney Allison Callahan regarding the Peete and Carter prosecutions, bearing Document ID Numbers Case A000421-23.
. After the state court judge viewed the September 23, 2010, videotape, she immediately reduced Plaintiffs bail to personal recognizance, and on January 28 2011, Plaintiff was released from jail. First Am. Compl. ¶ 7 [#108].
. On March 28, 2011, Assistant District Attorney Kathryn Hinman filed a nolle prosequi, stating that the D.A.'s Office would no longer prosecute Plaintiff. Id ¶ 42.
. At some time thereafter, unidentified Assistant District Attorney(s) apparently drafted the remaining documents at issue here, which relate to the D.A.'s Office's preparation for the Peete and Carter trials, and which bear Document ID Numbers CaseA000068-69 (second document); CaseA000070-71 (third document); CaseA000748-49 (fourth document); and CaseA001205 (fifth document).
. On July 19, 2011, Assistant District Attorney Callahan gave notice of discovery in the Commonwealth v. Peete, SUCR2010-10628, and Commonwealth v. Carter, SUCR2010-10629, reporting that “Darren Sheridan was involved in the investigation and subsequent indictment of Herbert Davis for the sale of a firearm (Docket #SUCR2011-10005.) The Commonwealth subsequently determined that it could not go forward based on the state of the evidence and difficulty with the identification of the defendant ...

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