United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON THE THIRD
PARTIES' EMERGENCY MOTION TO QUASH SUBPOENA AND DEFENDANT
AMERICAN MEDICAL RESPONSE OF MASSACHUSETTS, INC.'S CROSS
MOTION TO COMPEL (Dkt. Nos. 43 & 48)
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE.
Herman Paul Cumby (Plaintiff) has brought suit against
American Medical Response, Inc. (AMR), American Medical
Response of Massachusetts, Inc. (AMR MA), Edward Van Horne,
the president of AMR and AMR MA, David Pelletier, the general
manager of AMR MA (collectively, AMR Defendants), and two
emergency medical technicians (EMTs), John Doe and Jane Doe,
who were employed by AMR MA, asserting federal claims under
42 U.S.C. § 1983 and state law (Dkt. No. 1). Before the
court is Advance Local Media, LLC's (MassLive) and
MassLive reporter Dan Glaun's "Emergency Motion to
Quash Subpoena[s]" (Dkt. No. 43). Defendant AMR MA
issued subpoenas duces tecum to MassLive and Mr. Glaun and a
deposition subpoena to Mr. Glaun, opposed the emergency
motion, and moved to compel MassLive and Mr. Glaun to comply
with the subpoenas (Dkt. No. 48 at 8-9). The court heard
argument from the parties on December 20, 2018 and took the
motions under advisement. For the reasons set forth below,
the court ALLOWS MassLive's and Mr. Glaun's emergency
motion to quash in part and DENIES it in part without
prejudice, and ALLOWS AMR MA's motion to compel in part
and DENIES it in part without prejudice
Relevant Background A.
claims against Defendants stem from the events that occurred
in and around Nathan Bill's EFP Bar and Restaurant
("Nathan Bill's") in Springfield during the
night of April 7, 2015 into the early morning hours of April
8, 2015 (Dkt. No. 1 ¶¶ 20, 23). At approximately
11:00 P.M. on April 7, 2015, Plaintiff was inside Nathan
Bill's with his cousins, Jozelle Ligon and Jackie Ligon,
their friend Michael Cintron (id. ¶ 20). A
group of off-duty Springfield police officers, including
Daniel Billingsley, his then-girlfriend Melissa Rodriguez,
Anthony Cicero, Christian Cicero, and Igor Basovskiy, were
also patronizing Nathan Bill's that night (id.
¶¶ 22, 23).
approximately 1:00 A.M. (now April 8, 2015), Billingsley
interpreted Jozelle's whistle to a bartender as a
"catcall" to Ms. Rodriguez (id.
¶¶ 23). Jozelle left the bar after Billingsley
"became aggressive" (id. ¶ 24).
Billingsley and two other off-duty officers followed Jozelle
outside (id.). Plaintiff, Mr. Cintron, and John
Sullivan, one of Nathan Bill's owners and the bar
manager, joined them (id. ¶ 25). "When
Billingsley rejected efforts to peacefully solve the
conflict," Plaintiff, Jackie, Jozelle, and Mr. Cintron
walked a short distance to Rocky's Hardware store
(id. ¶¶ 25, 26). From there, Plaintiff
left the group and walked down Allen Street while speaking to
his girlfriend on his cell phone (id. ¶ 26).
before" 2:00 A.M., Plaintiff walked back toward Nathan
Bill's to get his vehicle from Nathan Bill's parking
lot (id. ¶¶ 21, 27). As he approached
Rocky's Hardware, he saw Jackie, Jozelle, and Mr. Cintron
near Murphy's Pop Shop and saw the off-duty officers from
Nathan Bill's and about ten others advancing toward them
(id. ¶¶ 27, 28). There was a loud whistle,
Billingsley allegedly said, "What's up now?"
and pushed Jozelle (id. ¶¶ 29, 30).
Plaintiff alleges that he attempted to "diffuse the
conflict" (id. ¶ 30). When he turned his
back on Billingsley and his group, someone struck him from
behind knocking him unconscious (id. ¶ 31).
Springfield police officers arrived at 2:04 A.M.
(id. ¶ 32). At 2:06 A.M., Defendant AMR MA,
which furnished contract emergency ambulance services to the
Springfield Police Department, was called to assist a
"'man down on the ground'" (id.
¶¶ 17, 32). According to the complaint, "AMR
MA first entered Nathan Bill's parking lot at 2:11:27
A.M., where a large majority of the Springfield Police had
gathered, and then exited the parking lot [one minute later]
and left the vicinity, without attending to . . . Plaintiff
who was lying on the ground unconscious" (id.
¶ 33). AMR MA returned "[a]fter some delay,"
parked near Plaintiff, but did not assist him (id.
¶ 34). When Plaintiff regained consciousness, he tried
to sit up and saw uniformed Springfield officers Darren
Nguyen and Shavonne Lewis speaking to the AMR MA EMTs, John
Doe and Jane Doe (id. ¶ 35). Plaintiff also saw
some of the off-duty officers who participated in the attack
walking back toward Nathan Bill's (id. ¶
alleges that he needed Mr. Cintron's help to reach the
EMTs' location because he was not able to bear weight on
his injured leg and the EMTs still did not approach him to
offer their assistance (id. ¶¶ 37, 39,
40). When EMT John Doe asked Plaintiff whether he needed
medical attention, Plaintiff responded, "I don't
know" (id. ¶ 40). EMT John Doe then told
Plaintiff that he "'look[ed] like crap'"
(id. ¶ 41). Notwithstanding Plaintiff's
report that he had been hit in the head, knocked unconscious,
and had "'just got[ten] off the ground, '"
EMT John Doe "briefly" examined Plaintiff's
bloody head wounds but did not ask whether he was suffering
from symptoms of a head injury and did not perform any
further assessments, such as checking his pupils or vital
signs (id. ¶¶ 42, 44). Plaintiff alleges
that EMT John Doe's treatment of his ankle and mouth
injuries was similarly subpar (id. ¶¶ 46,
John Doe asked Plaintiff whether he wanted to be transported
to the hospital and, without discussing Plaintiff's
finances or health insurance, added, "'An ambulance
trip would be expensive'" (id. ¶¶
53, 54). Plaintiff sought EMT John Doe's advice regarding
whether he needed emergency treatment at a hospital to which
the EMT replied, "'I think you had too much to drink
and should go home and sleep it off'" (id.
¶ 55). Plaintiff then drove his vehicle to a
cousin's house where he continued to suffer the effects
of his injuries (id. ¶¶ 60, 63). Later
that day, Plaintiff went to the Baystate Medical Center
emergency room where he was diagnosed with a concussion, a
broken leg, and "a severely dislocated ankle with
significant ligamentous and cartilage injury (requiring
surgery and insertion of a metal plate and screws)"
(id. ¶ 65). In addition, he lost four upper
front teeth (id.).
Glaun conducted interviews that are related to the incident
that occurred in or near Nathan Bill's on April 7-8,
2015. Mr. Glaun interviewed Plaintiff, Jackie, and their
attorneys for an October 16, 2016 MassLive article describing
the incident, Plaintiff's medical treatment, and injuries
(Dkt. No. 48-1 at 2-10). All interviewees were identified in
the article (id.). Mr. Glaun spoke to Plaintiff and
his attorney again and quoted them in an article that
appeared on MassLive on February 3, 2017 (id. at
63-67). Jozelle, Jackie, and their attorney were interviewed
for an April 21, 2017 MassLive article authored by Mr. Glaun
(id. at 112, 113). Finally, a January 15, 2018
article identified statements obtained from interviews of
Plaintiff, his girlfriend, and his attorney regarding the
incident and its aftermath (id. at 115-123). Other MassLive
articles referenced information gathered from confidential
sources (id. at 132, 160, 161).
April 6, 2018 complaint alleges violations of 42 U.S.C.
§ 1983 and raises pendant state law claims. According to
the complaint, the violation of Plaintiff's civil rights
stemmed from the EMTs' alleged collusion with Springfield
police officers at the scene to deny Plaintiff appropriate
emergency medical treatment based on "his race, assumed
socio-economic status, and the fact that he had been
victimized by [off-duty] Springfield police officers"
whose conduct the EMTs and police were purportedly attempting
to conceal (Count VII) (Dkt. No. 1 ¶¶ 94-102). In
Count VIII, Plaintiff alleges that the AMR Defendants
breached their duty to "properly hire, train, and
supervise [their] employees and agents in the appropriate
standard of care that would not violate [Plaintiff's]
civil rights" (id. ¶¶ 103-107).
Plaintiff brings a similar claim under the Massachusetts
civil rights statute, Mass. Gen. Laws ch. 12, § 11I
(Count IX) (id. ¶¶ 108-115). In addition,
the complaint includes state law claims of negligence,
negligent infliction of emotional distress, and intentional
infliction of emotional distress against the EMTs (Counts I,
II, III) (id. ¶¶ 66-79) and against the
AMR Defendants for their alleged failure to "properly
hire, train, and supervise [their] employees and agents to
provide the appropriate standard of care" (Counts IV, V,
VI) (id. ¶¶ 80-93).
course of discovery, AMR MA issued subpoenas duces tecum to
MassLive and to Mr. Glaun based on the MassLive articles Mr.
Glaun authored regarding the Nathan Bill's incident (Dkt.
No. 45-1 at 2, 6). The subpoena issued to Mr. Glaun also
commanded his appearance at a deposition on December 18, 2018
(id. at 2).
and Mr. Glaun moved to quash the subpoenas on December 4,
2018 (Dkt. No. 43). They advanced two grounds for their
motion to quash: (1) the government agencies' public
records that AMR MA seeks are available from other sources
and their production by MassLive would constitute an undue
burden; and (2) Mr. Glaun's interviews of witnesses, and
his notes, recordings of interviews, and other investigatory
materials are privileged and contain information obtained
from confidential sources (Dkt. No. 44 at 3-7).