Rule 17A - Official Record of Superior Court Proceedings1. Definitions a. The term "Court Reporter" means an official court reporter assigned to the session, any per diem court reporter approved by the Superior Court or a temporary official reporter appointed by the session judge pursuant to G.L. c. 221, §83. b. The term "Approved Court Transcriber" means a person on the "Trial Court Approved Transcriber List" managed by the Office of Transcription Services.c. The term "Office of Transcription Services" or "OTS" means the Office of Transcription Services ofthe Trial Court or any successor unit responsible for transcription of Superior Court proceedings. d. For purposes of Mass. R. A. P. 8(b)(3)(ii), a copy ofthe recording made by the session clerk, whether on compact disk or other physical or electronic medium, shall constitute the "cassette." 2.Court Reporters a. When a Court Reporter records the proceeding, the sole official transcript in the Superior Court is a transcript produced by the Court Reporter.b. In the absence of an assigned Court Reporter, the session judge may appoint a temporary court reporter pursuant to G.L. c. 221, §83.c. Unless otherwise expressly ordered by the court, the presence of a certified court reporter actively recording the proceedings without objection by the parties shall be deemed an appointment of that reporter as a temporary official court reporter pursuant to 0.1. c. 221, §83. 3. Audio or Visual Recordings In the absence of a Court Reporter, the proceedings shall be recorded by audio or audiovisual means on a recording device or system approved by the Chief Justice of the Trial Court or designee. In that event, the following rules apply:
a. The session clerk or other designee ofthe Clerk Magistrate will operate the recording equipment. The Clerk Magistrate or designee shall have the care, custody and control ofall recordings. b. The Clerk Magistrate or designee shall ensure that a daily copy (CD or DVD) of the audio of each session digitally recorded is made and retained; provided that the ChiefJustice of the Trial Court or designee may approve an alternative and equally effective method for technological or other reasons. c. The sole official transcript in the Superior Court is a transcript produced and certified by an Approved Court Transcriber prepared from those recordings unless otherwise ordered by the Court, except as provided in Mass. R. A. P. 8(b)(3). The official transcript may be in paper or electronic form, in accordance with any applicable Trial Court record retention policy. d. Counsel and self-represented persons shall assist in creating an audible record by using the microphones provided and shall be responsible for requesting the session judge, when necessary, to iustruct other counsel, witnesses or others as to the proper use ofthe microphones in order to insure an audible record. Counsel, self-represented persons, clients, witnesses and all other attendees shall also be responsible to mute microphones when necessary to protect against recording of communications protected by the attorney-client or other privilege. 4.Release of Recordings a. Audio or audiovisual recordings made by the clerk are presumptively available to the parties and the public unless impounded or otherwise deemed non-public by statute, rule or binding appellate precedent. Upon receiving a request for a recording, the clerk shall review the docket entries and any log or other system designed for tagging non-public information to avoid release of any such non-public information and to eusure compliance with any order sealing, impounding, or otherwise precluding or limiting access to all or any portion ofthe recording. Upon receipt of a recording, the person who requested it ("requestor") shall review the recording, docket entries and the case file for the same purpose. The Clerk shall notify the requestor that any use, retention or dissemination of non-public information is unlawful and may result in sanctions, including contempt. Unless otherwise ordered by the court, all publicly available recordings shall be released (i) by consent of all parties, (ii) without further notice if the requestor is entitled to proceed ex parte by statute, rule, binding appellate precedent or court impoundment order, (iii) after 10 days notice to all parties without receipt or notice of an opposition, as verified in writing by the requestor, or (iv) pursuant to Mass. R. A. P. 8(b)(3)(ii) and part 5 below. The court may also approve earlier release ofthe recording upon a sworn showing of an emergency and such notice as time permits. b. If any party, counselor requestor has reason to believe that any requested recording may contain (i) inadvertently recorded confidential communications, (ii) other information protected by law from disclosure or (iii) material that should be released only in transcript form, s/he shall file forthwith a writing with the clerk, stating the basis ofthe belief and attaching all evidentiary and legal support. In the event of such a notification or an opposition to release, the clerk will not release the recording without an order of the judge who presided over the recorded proceeding, or in his or her absence, the session judge. The court has the discretion to rule on the objection on the papers or after hearing.c. All parties or attorneys objecting to release of a recording on the ground that their privileged or confidential communications may have been recorded shall presumptively bear the burden and expense ofredacting such communications from any recording provided under this Rule, unless otherwise ordered by the court. d. A person or entity moving to make public any official or unofficial recording that is not presumptively available to the public has the burden to show why doing so would serve the interests ofjustice in the particular case or is required by law. Among other things, the Court shall consider and, if appropriate, protect against: (1) the possible presence of audible confidential communications or impounded information on the recordings; (2) the possibility of public confusion due to multiple versions ofthe "record" of a proceeding; (3) potential modification ofthe recordings or preparation oftranscripts from recordings by untrained persons who are not under a professional or legal obligation to prepare the record without misrepresentation, bias or omissions; and (4) the possible use or misuse outside the courtroom in a manner that could materially embarrass, humiliate, intimidate or invade the privacy or peace of mind of individuals. The Court may require the moving party to reimburse the Commonwealth for any employee time or expense required to review the recording for potentially confidential, embarrassing, intimidating or humiliating material.5.Release of Recordings for Transcription on Appeal a. Unless opting to proceed pursuant to paragraph b of this paragraph, an appellant orders the recording "from the clerk" ofthis court for purposes of Mass. R. A. P. 8(b)(3)(i), by submitting a request to OTS on the applicable OTS form simultaneously with the filing of the notice of appeal. That method fully suffices to order the recording as long as the appellant discloses that request in a timely-filed transcript order form pursuant to Mass. R. A. P. 8(b). b. Any appellant who chooses to submit a request directly to the clerk for copies of recordings under Mass. R. A. P. 8(b) (3 )(i) shall state whether the appellant intends to ask the appellee to agree upon an individual or firm to prepare the transcript pursuant to Mass. R. A. P. 8(b)(3)(ii). In the absence ofsuch a statement and subsequent timely-filed document designating the agreed transcriber, the Clerk shall designate OTS as the transcriber, except as may be provided in procedures promulgated by the Chief Administrative ofthe Trial Court pursuant to Mass. R. A. P. 8(b)(3)(ii), fourth sentence. c. If, for any reason, OTS does not produce or provide for the transcription, any party submitting an order for the recording under Mass. R. A. P. 8(b)(3)(ii) shall simultaneously (or in advance) comply with paragraph 4 above, but shall not delay compliance with Mass. R. A. P. 8(b)(3)(ii). 6.Retention of Recordings Recordings shall be preserved in criminal matters in perpetuity and in civil matters for six years after entry of final judgment (which, in the event of an appeal, shall be the final judgment after rescript).
7.Motions for Enforcement or Relief Motions for enforcement of, or relief from, the above provisions, or for correction or supplementation ofthe transcript of a trial or motion hearing, shall be made to the trial or motion judge who presided over the session, if possible. Otherwise, such motions shall be made to the then-sitting session judge.
Adopted September 24, 2015, effective 1/1/2016.