MEMORANDUM AND ORDER
KAREN M. HUMPHREYS, Magistrate Judge.
Plaintiffs served a subpoena duces tecum seeking testimony and documents related to a sting operation by the Kansas City, Kansas Police Department (KCKPD) on Jerome Gorman, the Wyandotte County District Attorney. This matter is before the court on the United States' and Gorman's respective motions to quash and/or for a protective order. (Docs. 205 & 212) For the reasons set forth below, the United States' motion shall be GRANTED and Jerome Gorman's motion shall be GRANTED IN PART.
Highly summarized, plaintiffs allege various civil rights and state law violations related to their arrest and detention following an internal sting operation by the KCKPD. The sting was called "Operation Sticky Fingers" and was designed to catch members of a tactical police team in the act of stealing property while executing a search warrant on a residence. Plaintiffs contend that they did not steal any property or engage in any illegal conduct and that their arrests were without probable cause.
The United States' Motion (Doc. 205)
Prior to the sting operation, the U.S. Attorney's Office for the District of Kansas and the FBI shared certain documents and verbal information with the Wyandotte County District Attorney concerning a federal criminal investigation of corruption in the KCKPD. Plaintiffs served a subpoena duces tecum on Mr. Gorman which included a request for all records of communication between Gorman and any member of the KCKPD, the U.S. Attorney's Office, or the FBI regarding (1) the planning of Operation Sticky Fingers and (2) any allegations of wrongdoing by plaintiffs. The United States moves to quash the subpoena or for a protective order, asserting privilege and public policy reasons for prohibiting discovery of the information provided to Mr. Gorman by the U.S. Attorney's Office or the FBI.
Plaintiffs now concede that the documents and information provided by the U.S. Attorney's Office and the FBI to Mr. Gorman are protected from discovery and, with one exception, "abandon" their request for such documents and communications. (Plaintiffs' Response, Doc. 219, pp.1-2). The exception concerns 31 FBI documents which were part of KCKPD's internal files. Plaintiffs allege that those documents were produced by defendants early in this case and have been used during the 34 depositions taken in this case. With the exception of the FBI documents (Bates numbered UG000199-UB000230), the United States' motion shall be granted.
IT IS THEREFORE ORDERED that the United States' motion (Doc. 205) is GRANTED. The subpoena is quashed "to the extent that it requests disclosure of information (either verbal or documentary) received from an agency or agent of the United States." Mr. Gorman is prohibited from disclosing information (verbal or documentary) received from an agency or agent of the United States.
Jerome Gorman's Motion (Doc. 212)
The same subpoena requests both deposition testimony and 13 categories of documents from the Wyandotte County District Attorney related to Operation Sticky Fingers. The documents requested include Mr. Gorman's communications with the KCKPD concerning (1) the planning of the operation, (2) officer misconduct, (3) probable cause, (4) criminal referrals, and (5) Giglio/Brady issues. Mr. Gorman asserts numerous objections to the subpoena which are discussed in greater detail below.
Mr. Gorman argues that he enjoys absolute immunity as a prosecutor "in initiating a prosecution and in presenting the State's case" and that this immunity shields him from "participating in litigation and making decisions as to how it should proceed." Imbler v. Pachtman , 424 U.S. 409, 424 (1976); Ashcroft v. Iqbal , 556 U.S. 662, 672 (2009). Gorman contends that Imbler's protection from the burdens of litigation extend to his status as a non-party witness. Chang v. U.S., 246 F.R.D. 372 (D.D.C. 2007). However, plaintiffs counter that the policy considerations underpinning absolute prosecutorial immunity are not applicable when a prosecutor gives advice to a police officer during the investigatory phase of a criminal case. Gorman asserts that even if certain aspects of his conduct are only entitled to qualified immunity he is still immune from discovery.
Gorman's contention that a non-party witness is immune from discovery because of qualified immunity is not persuasive. Gorman relies on Ashcroft v. Iqbal , which discusses a public official's claim of qualified immunity and the "burdens of litigation" in the context of the official's status as a party. It does not address the situation where the public official is merely a fact witness in the case. Moreover, there is no question that a non-party who is immune from suit can be compelled to provide discovery. For example, states are immune from suits by citizens in federal court under the Eleventh Amendment, yet federal courts regularly order state agencies to produce relevant documents in cases where the state is not a party. Similarly, a police officer may be entitled to qualified immunity but still be a fact witness and subject to a deposition subpoena concerning the acts of other police officers. Gorman's contention that a non-party witness is immune from discovery merely because the witness is entitled to qualified immunity from suit is rejected.
With respect to absolute immunity, research reveals only two reported cases holding that a non-party witness who has absolute immunity from liability as a prosecutor is immune from discovery. In Chang v. U.S., 246 F.R.D. 372 (D.D.C. 2007), Judge Emmet G. Sullivan denied plaintiffs' Rule 30(b)(6) subpoena request for information from the Washington, D.C. prosecutor's office concerning: (1) the prosecutor's decision whether to prosecute protestors arrested in a park and (2) the creation of "notices of infraction" for the arrested persons. Judge Sullivan concluded that the reasons for prosecutorial immunity expressed in Imbler v. Pachtman similarly applied to certain discovery requests even though the prosecutor was not a party to the lawsuit. In a case from the District ...