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Thomas v. City of Wichita

United States District Court, D. Kansas

September 3, 2014

KEN THOMAS, Plaintiff,
v.
CITY OF WICHITA, KANSAS, et al., Defendants.

MEMORANDUM AND ORDER

KAREN M. HUMPHREYS, Magistrate Judge.

This matter is before the court on the motion of third party Dan Voorhis to quash defendants' trial subpoena (Doc. 87). This motion has been referred to the undersigned Magistrate Judge as a non-dispositive matter pursuant to D. Kan. Rule 72.1.1(i) and 28 U.S.C. § 636(b)(3). As explained in greater detail below, the motion is GRANTED IN PART and DENIED IN PART.

Background

On June 2, 2011 in Wichita, Kansas, fire engulfed an industrial complex at which plaintiff leased commercial space. Plaintiff claims that during the fire he was unlawfully arrested and assaulted when he attempted to approach the fire chief to discuss the fire. Plaintiff denies any inappropriate behavior and asserts that he simply approached the firemen to warn them about dangerous conditions, including a natural gas line, electrical line, and ammonia line.

Defendants dispute this characterization and assert that, at the time of the heavily-involved structure fire, plaintiff's identity was unknown to firefighters and, although he was warned on multiple occasions, plaintiff refused to stay back from the dangerous fire. After plaintiff was observed attempting to enter the building at multiple locations, a fireman informed plaintiff that the conditions were unsafe and he must stay away from the building. At some point during this exchange, plaintiff swore repeatedly at the firemen and lunged at the fire investigator. When a police officer tried to intervene, plaintiff punched him. Defendants assert that the policemen and firefighters were merely trying to control plaintiff's irrational behavior in order to effectively fight the fire.

Seven months later, on January 29, 2012 The Wichita Eagle published a news article about the effects of the fire and the altercation between plaintiff and the officers. That article was written by reporter Dan Voorhis. The article states in part that "Thomas said that Wichita firefighters wouldn't listen when he told them a high-pressure gas line to the plant had to be turned off. When he moved to do it anyway, he was wrestled to the ground, he said." When questioned during his deposition, plaintiff denied making the statement to Voorhis.

Both parties' counsel attempted to persuade Voorhis to voluntarily testify. Voorhis refused to do so but produced an affidavit to counsel which contained authentication of his article and confirmation that the information in the article was accurate.[1] After plaintiff refused to stipulate to the affidavit's admissibility at trial, defendants properly served Voorhis through his counsel with a subpoena for his attendance at the trial previously scheduled for September 10, 2014.[2]

Voorhis' Motion to Quash Trial Subpoena (Doc. 87)

Consistent with Fed.R.Civ.P. 45, Voorhis timely filed his motion to quash the subpoena. He asserts that the information sought is protected by the First Amendment reporter's privilege and the Kansas journalist privilege found in K.S.A. § 60-480, et seq. In the alternative, Voorhis requests that the subpoena be modified to limit the scope of questioning to the information provided in his previously-offered affidavit.

Defendants argue that the cases cited in Voorhis' briefing are distinguishable and do not support quashing the subpoena, and that the applicable balancing test weighs in favor of enforcing the subpoena. However, defendants agreed to limit their questioning at trial to that information found in Voorhis' affidavit. Plaintiff did not respond to the motion to quash and is therefore assumed not to oppose the motion.[3]

Voorhis requested alternative relief and defendants approved of that request. Given this accord between the parties, the court could simply accept this agreement and conclude further inquiry. However, the court believes brief discussion of the merits of the motion is warranted.

Applicable law

Fed. R. Civ. P. 45 regulates subpoenas directed to non-parties. This rule provides that "on timely motion, the court must quash or modify a subpoena that... requires disclosure of privileged or other protected matter, if no exception or waiver applies."[4] Voorhis contends that both federal and state testimonial privileges apply and the court must quash the subpoena.

Plaintiff's claims of false arrest and excessive force are rooted in federal question jurisdiction and so the court must, at least in part, review the question of privilege under federal law.[5] Following the United State Supreme Court's ruling in Branzburg v. Hayes , [6] the Tenth Circuit in Silkwood v. Kerr-McGee Corp .[7] articulated a balancing process by which the trial court reviews a journalist's First Amendment privilege. The court established the following criteria for consideration: 1) the nature of the evidence sought; 2) the effort to obtain the ...


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