Mass. Guid. Evid. 1108
Introduction. In criminal cases, pretrial discovery is limited to information and objects in the possession or control of the parties and is governed principally by Mass. R. Crim. P. 14. When a party seeks access in advance of trial to books, papers, documents, or objects (records, privileged or nonprivileged) that are in the hands of a third party, such requests are governed by Mass. R. Crim. P. 17(a)(2). Commonwealth v. Odgren, 455 Mass. 171, 186-187 (2009) (both prosecutor and defense counsel must follow the procedures contained in Mass. R. Crim. P. 17 and obtain prior judicial approval to obtain access before trial to any records in the hands of a third party, whether privileged or not). See Commonwealth v. Lampron, 441 Mass. 265, 268 (2004). See also Commonwealth v. Hart, 455 Mass. 230, 243 (2009) (Mass. R. Crim. P. 17[a][2] is the exclusive method to obtain records from a third party prior to trial); Commonwealth v. Hunt, 86 Mass. App. Ct. 494, 495 (2014) (affidavit accompanying motion for records must meet the specificity requirements of Mass. R. Crim. P. 17[a][2]). When Mass. R. Crim. P. 17(a)(2) has been satisfied and a nonparty has produced records to the court, the protocol set forth in Commonwealth v. Dwyer, 448 Mass. 122, 139-147 (2006), governs review or disclosure of presumptively privileged records by defense counsel. To reference the forms promulgated by the Supreme Judicial Court, see http://perma.cc/45WM-J4NE.
At trial, a defendant seeking records must proceed under Mass. R. Crim. P. 17(a)(2). The Commonwealth may proceed under either Mass. R. Crim. P. 17(a)(2) or G. L. c. 277, § 68. See Hart, 455 Mass. at 243 (a subpoena issued under G. L. c. 277, § 68, may only request a third party to produce records to a court on the day of the trial). Records held in the victim's compensation file maintained by the attorney general, a third party, are accessible under Mass. R. Crim. P. 17(a)(2). Commonwealth v. Torres, 479 Mass. 641, 650-651 (2018).
Subsection (a). This subsection is derived from Commonwealth v. Lampron, 441 Mass. 265, 268 (2004). See also Commonwealth v. Odgren, 455 Mass. 171, 187 (2009) ( Lampron procedures apply to both prosecution and defense).
Subsection (b). This subsection is derived generally from Commonwealth v. Lampron, 441 Mass. 265, 268 (2004), and Commonwealth v. Dwyer, 448 Mass. 122, 148 (2006). "The Commonwealth's inability to locate either the record holder or the third-party subject shall not delay the Lampron hearing." Id. at 148 n.2.
In Commonwealth v. Lampron, 441 Mass. 265 (2004), the Supreme Judicial Court followed Federal law as enunciated in United States v. Nixon, 418 U.S. 683, 699-700 (1974), and held that a party moving to summons documents pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause by showing the following:
"(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general 'fishing expedition.'"
Lampron, 441 Mass. at 269. Accord Commonwealth v. Mitchell, 444 Mass. 786, 792 (2005) (summarizing these requirements as "relevance, admissibility, necessity, and specificity"). See Commonwealth v. Jones, 478 Mass. 65, 68-72 (2017) (in sexual abuse prosecution, trial judge did not abuse discretion in refusing to issue summonses for privileged records where defendant's showing of relevance was "too speculative"); Commonwealth v. Olivier, 89 Mass. App. Ct. 836, 844-846 (2016) (trial judge correctly denied motion for release of privileged records where defendant failed to present evidence of connection between diagnosis in records and victim's actions); Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 588-589 (2013) (judge properly denied defendant's pretrial motion seeking access to complainant's preabuse mental health records based only on belief that they might yield evidence concerning her credibility).
"Presumptively privileged records are those prepared in circumstances suggesting that some or all of the records sought are likely protected by a statutory privilege, for example, a record prepared by one who holds himself or herself out as a psychotherapist, see G. L. c. 233, § 20B; a social worker, see G. L. c. 112, § 135B; a sexual assault counsellor, see G. L. c. 233, § 20J; or a domestic violence victims' counsellor, see G. L. c. 233, § 20K."
Dwyer, 448 Mass. at 148. Because the judge will not have viewed any of the records sought by the defendant, "the judge shall make such determination based on the identity of the record holder or record preparer (if known) and any additional information adduced at the Lampron hearing. The defendant shall have the burden of showing that records are not presumptively privileged." Id. at 148 n.3.
Subsection (c). This subsection is derived generally from Commonwealth v. Lampron, 441 Mass. 265 (2004), and Commonwealth v. Dwyer, 448 Mass. 122 (2006).
"Some records, although not presumptively privileged, may contain information of a personal or confidential nature, such as medical or school records. See, e.g., G. L. c. 71B, § 3 (special education records); G. L. c. 111, §§ 70, 70E (hospital records). The judge may, in his or her discretion, order such records produced subject to an appropriate protective order." Dwyer, 448 Mass. at 149 n.5.
In rare cases, where treatment records ordered to be produced have been destroyed and there is no adequate substitute for them, the court has inherent remedial authority, independent of Mass. R. Crim. P. 17, the Lampron - Dwyer protocol, and Mass. R. Crim. P. 35, to order a limited deposition of the social worker with adequate protocols and safeguards to ensure that the deposition is confined to the parameters of the destroyed records. Matter of an Impounded Case, 491 Mass. 109, 118-121 (2022).
When a court of another State makes a request under the Uniform Law to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, G. L. c. 233, §§ 13A-13D ("Uniform Act"), for sexual assault counseling records that are presumptively privileged under G. L. c. 233, § 20J, and the objecting party establishes a substantial likelihood that the protections of Section 20J will be abrogated in the requesting State, the Massachusetts judge receiving the request must adjudicate it by applying the Lampron - Dwyer protocol. Matter of a Motion to Compel, 492 Mass. 811, 812-813 (2023). This is a limited exception to the general rule that privilege claims arising out of requests under the Uniform Act are litigated in the requesting jurisdiction, not the jurisdiction receiving the request. Id. at 813; Matter of a R.I. Grand Jury Subpoena, 414 Mass. 104, 109 (1993).
The party objecting to the request bears the burden to establish a substantial likelihood that protections provided by the Lampron - Dwyer protocol will be abrogated in the requesting State. Matter of a Motion to Compel, 492 Mass. at 819-820. To determine if the objecting party met its burden, the judge may look to the law of the requesting State and rely on representations in the certificate from the requesting out-of-State court as to the means by which it will protect the requested information. Id. at 819. If the objecting party meets its burden, the judge must then ensure that the presumptively privileged records or testimony will receive the protections of the Lam-pron - Dwyer protocol before authorizing a subpoena for those records under the Uniform Act. The judge should be cautious of relying on any facts or conclusions established in the other State without notice to the record holder. Id. at 819-821 (reviewing judge may implement full Lampron - Dwyer protocol or any parts of it that would not otherwise be fulfilled in requesting out-of-State court).
Subsection (d). This subsection is derived generally from Commonwealth v. Dwyer, 448 Mass. 122, 149 (2006). A judge may order that even nonpresumptively privileged records be subject to an appropriate protective order. Id. at 149 n.5 (Appendix).
"The Commonwealth may inspect or copy any records if prior consent is given by the record holder and third-party subject (where applicable)." Id. at 149 n.7. With respect to nonpresumptively privileged records, Subsection (d)(1), a party may have production obligations pursuant to Mass. R. Crim. P. 14 or other pretrial agreements. See Commonwealth v. Mitchell, 444 Mass. 786, 800 (2005).
Subsection (e). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 149-150 (2006).
Subsection (f). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150 (2006).
Subsection (g). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150 (2006).
Subsection (h). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150 (2006).