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Siroky v. Allegheny County

United States District Court, W.D. Pennsylvania

March 26, 2018

GEORGENE SIROKY, Plaintiff,
v.
ALLEGHENY COUNTY, Defendant.

          OPINION

          JOY FLOWERS CONTI, CHIEF DISTRICT JUDGE

         I. Introduction

         In this discrimination lawsuit, which is set for trial in May 2018, plaintiff Georgene Siroky (“Siroky” or “plaintiff”) alleges that the Allegheny County Office of the Public Defender (“Office of the Public Defender” or “defendant”) discriminated against her on the basis of her age by denying her raises and promotions in favor of younger attorneys in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 626 and 28 U.S.C. § 1331. (ECF No. 1 ¶ 9.) On September 1, 2017, the Office of the Public Defender filed a Motion in Limine (ECF No. 80) which requested that this court exclude as an exhibit at trial statements made by Elliot Howsie (“Howsie”), Allegheny County Chief Public Defender, that appeared in an article published by The Post-Gazette on March 17, 2013, and authored by Paula Reed Ward (“Ward”). The article discusses the management of the Office of the Public Defender by Howsie after defendant was sued by the American Civil Liberties Union (“ACLU”) in 1996. (ECF No. 117 ¶ 5.) In that lawsuit, the ACLU alleged that the Office of the Public Defender was ineffectively run, and therefore, it deprived indigent criminal defendants of their constitutional rights to counsel. (ECF No. 117-1 at 2-3.)

         Ward interviewed Howsie for the article. The alleged statements at issue are the following:

“People are reluctant to change, ”…[Mr. Howsie] said. “Now, we're requiring the more senior attorneys to do the heavy lifting. I'm not interested in firing anyone. But I do have an interest in making people so uncomfortable that they leave.”

(ECF No. 117-1 at 3.) During a final pretrial conference held on November 1, 2017, the court ruled that Howsie's statements in the article were hearsay and would only be admissible at trial if Ward testified about the statements made to her by Howsie. (ECF No. 121-2.)

         On November 3, 2017, a Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action (the “Subpoena”) was issued to Ward on behalf of Siroky which seeks to compel Ward to testify about Howsie's statements to her and seeks Ward's notes and reporting material with respect to the article. On December 14, 2017, Ward and The Post-Gazette filed a Motion to Quash Subpoena pursuant to Federal Rule of Civil Procedure 45 (ECF No. 117) in which they argue that the subpoena violated the qualified reporter's privilege guaranteed by the First Amendment to the United States Constitution. On January 11, 2018, Siroky filed a response to Motion to Quash Subpoena. On February 8, 2018, Ward and The Post-Gazette filed a reply brief. (ECF No. 124.)

         On February 15, 2018, the court held a hearing with respect to the motion to quash. After hearing from the movants and the parties, the court-in order to determine whether there was another person who could testify about Howsie's alleged statements and, therefore, avoid the need to subpoena Ward-permitted Siroky to serve two interrogatories on Howsie about whether there were other persons present when he was interviewed by Ward. The court also permitted Ward and The Post-Gazette to file a supplemental brief addressing decisions Siroky raised for the first time at the hearing. On February 20, 2018, Ward and The Post-Gazette filed their supplemental brief. (ECF No. 126.) On the same day, Siroky filed a motion for leave to file a supplemental brief, which Ward and The Post-Gazette opposed. (ECF Nos. 125, 128.) The court granted Siroky's motion, permitted her to file a supplemental brief, and permitted Ward and The Post-Gazette to file a response in opposition to that supplemental brief. (ECF No. 129.) On February 21, 2018, Siroky filed her supplemental memorandum. (ECF No. 130.) On February 28, 2018, Ward and The Post-Gazette filed their response. (ECF No. 131.)

         The motion to quash having been fully briefed and argued is now ripe to be decided by the court.

         II. Federal Rule of Civil Procedure 45

         A subpoena served during discovery must fall within the scope of discovery set forth in Federal Rule of Civil Procedure 26(b)(1). Green v. Cosby, 314 F.R.D. 164, 169 (E.D. Pa. 2016). Rule 26(b)(1) provides:

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Federal Rule of Evidence 45(d)(3) provides that a court “must quash or modify a subpoena that…requires disclosure of privileged or other protected matter, if no exception or waiver applied.” Fed.R.Civ.P. 45(d)(3).

         The court in Green described the procedure that should be followed when a party challenges a subpoena served during discovery as follows:

“The serve-and-volley of the federal discovery rules govern the resolution of a motion to quash.” In re Domestic Drywall, 300 F.R.D. at 239 (internal quotation marks omitted). First, the subpoenaing party must demonstrate that its requests fall within the general scope of discovery defined in Rule 26(b)(1). Id. Accordingly, the subpoenaing party may only seek “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). If the general scope of discovery encompasses the requests of the subpoenaing party then the burden shifts to the party opposing the subpoena to establish that Rule 45(d)(3) provides a basis to quash the subpoena. See In re Domestic Drywall, 300 F.R.D. at 239. Rule 45(d)(3)(A) requires a court to quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A)….The burden of the party opposing the subpoena “is particularly heavy to support a motion to quash as contrasted to some more limited protection such as a protective order.” In re Domestic Drywall, 300 F.R.D. 234 at 239 (internal quotation marks omitted).

Green, 314 F.R.D. at 169-70.[1]

         III. Discussion

         The Post-Gazette argues that the court must quash the subpoena issued to Ward by Siroky because the testimony and documents sought in that request are subject to the qualified reporter's privilege. The First Amendment to the United States Constitution[2] and Federal Rule of Evidence 501[3] are the sources of a qualified reporter's privilege. Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979). In Riley, the court explained:

The strong public policy which supports the unfettered communication to the public of information, comment and opinion and the Constitutional dimension of that policy, expressly recognized in Branzburg v. Hayes, lead us to conclude that journalists have a federal common law privilege, albeit qualified, to refuse to divulge their sources. Such a privilege has also been recognized by many other courts which have considered this question following the decision in Branzburg v. Hayes. See, e. g., Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436 (10th Cir. 1977); Baker v. F & F Investment, supra; Gulliver's Periodicals, Ltd. v. Charles Levy Circulating Co., 455 F.Supp. 1197, 1203 (N.D.Ill.1978); Zerilli v. Bell, supra; Altemose Construction Co. v. Building & Construction Trades Council, 443 F.Supp. 489, 491 (E.D.Pa.1977); Gilbert v. Allied Chemical Corp., 411 F.Supp. 505, 508 (E.D.Va.1976).

Riley, 612 F.3d at 715. The qualified reporter's privilege has been “adopted and recognized by Pennsylvania state and federal courts[.]” Kitzmiller v. Dover Area Sch. Dist., 379 F.Supp.2d 680, 685 (M.D. Pa. 2005). Once the privilege has been ...


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