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.
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.
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.
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.
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."
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.
But plaintiff also makes pendent claims sounding in state common law tort. In 1978, the Kansas Supreme Court recognized a newsperson's privilege in State v. Sandstrom.
Because plaintiff's claims include both federal and state law claims, the Tenth Circuit has generally directed that the court consider both bodies of law.
The purpose of the federal privilege is to encourage the free flow of information by protecting the reporter's confidential sources of information.
After review of Voorhis' affidavit, the court agrees with defendants that the primary reason for his testimony is to simply confirm that the Wichita Eagle article is accurate and that plaintiff made the statement at issue. Voorhis' testimony will not force the revelation of some confidential source or even any "previously undisclosed information;" rather, the reporter's sole identified source is plaintiff himself. Because the information sought is not confidential, the court could find that the information sought lies outside the journalist's privilege.
Assuming the information sought from Voorhis is privileged for discussion purposes only, an analysis of both the Silkwood and K.S.A. § 60-482 criteria compels the same conclusion. Defendants attempted to reach agreements with plaintiff's and movant's counsel to avoid the necessity of Voorhis' testimony, but without such a stipulation Voorhis is the only person who can testify as to the validity of the published statement. While the court understands that this may create a burden for Voorhis, and that admission of his affidavit would seem a more practical solution, neither party advances any applicable authority for doing so and the court has been unable to locate any authority.
However, in the event his motion to quash were denied, Voorhis suggested the alternative relief that his trial testimony be limited to the information in his affidavit and defendants agreed. Given plaintiff's election not to respond to the motion, the court views Voorhis' proposal as unopposed and will therefore