Section 1108. Access to Third-Party Records Prior to Trial in Criminal Cases (Lampron-Dwyer Protocol)

(1) Whenever in a criminal case a party seeks to summons books, papers, documents, or other objects (records) from any nonparty individual or entity prior to trial, the party shall file a motion pursuant to Mass. R. Crim. P. 17(a)(2), stating the name and address of the custodian of the records (record holder) and the name, if any, of the person who is the subject of the records (third-party subject), for example, a complainant, and describing, as precisely as possible, the records sought. The motion shall be accompanied by an affidavit as required by Mass. R. Crim. P. 13(a)(2) and Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72 (2004) (Lampron).

(2) The moving party shall serve the motion and affidavit on all parties.

(3) The Commonwealth shall forward copies of the motion and affidavit to the record holder and (where applicable) to the third-‌party subject, and notify them of the date and place of the hearing on the motion. The Commonwealth shall also inform the record holder and third-party subject that (i) the Lampron hearing shall proceed even if either of them is absent; (ii) the hearing shall be the third-party subject’s only opportunity to address the court; (iii) any statutory privilege applicable to the records sought shall remain in effect unless and until the third-party subject affirmatively waives any such privilege, and that failure to attend the hearing shall not constitute a waiver of any such privilege; and (iv) if the third-party subject is the victim in the case, he or she has the opportunity to confer with the prosecutor prior to the hearing.

(b) The Lampron Hearing and Findings.

(1) A party moving to summons documents pursuant to Mass. R. Crim. P. 17(a)(2) prior to trial must establish good cause by showing (i) that the documents are evidentiary and relevant; (ii) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (iii) 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 (iv) that the application is made in good faith and is not intended as a general fishing expedition.

(2) At the Lampron hearing, the judge shall hear from all parties, the record holder, and the third-party subject, if present. The record holder and third-party subject shall be heard on whether the records sought are relevant or statutorily privileged.

(3) Following the Lampron hearing, and in the absence of having reviewed the records, the judge shall make oral or written findings with respect to the records sought from each record holder indicating (i) that the party seeking the records has or has not satisfied the requirements of Mass. R. Crim. P. 17(a)(2), and (ii) that the records sought are or are not presumptively privileged. A judge’s determination that any records sought are presumptively privileged shall not be appealable as an interlocutory matter and shall carry no weight in any subsequent challenge that a record is in fact not privileged.

(1) If all Mass. R. Crim. P. 17(a)(2) requirements have been met and there has been a finding that the records sought are not presumptively privileged or the third-party subject has waived all applicable statutory privileges, the judge shall order a summons to issue directing the record holder to produce all responsive records to the applicable clerk of the court on the return date stated in the summons. The clerk shall maintain the records in a location separate from the court file, and the records shall be made available for inspection by counsel, as provided in Subsection (d)(1) below. The records shall not be made available for public inspection unless and until any record is filed in connection with a proceeding in the case or introduced in evidence at the trial.

(2) Where a judge has determined that some or all of the requested records are presumptively privileged, the summons shall so inform the record holder and shall order the record holder to produce such records to the clerk of the court in a sealed envelope or box marked “PRIVILEGED,” with the name of the record holder, the case name and docket number, and the return date specified on the summons. The clerk shall maintain the records in a location separate from the court file, clearly designated “presumptively privileged records,” and the records shall not be available for inspection except by counsel as provided in Subsection (d)(2). The records shall not be made available for public inspection unless and until any record is introduced in evidence at trial.

(d) Inspection of Records.

(1) Nonpresumptively Privileged Records. The clerk of court shall permit counsel who obtained the summons to inspect and copy all records that are not presumptively privileged. When the defendant is the moving party, the Commonwealth’s ability to inspect or copy the records is within a judge’s discretion.

(2) Presumptively Privileged Records.

(A) The clerk of court shall permit only defense counsel who obtained the summons to inspect the records, and only on counsel’s signing and filing a protective order in a form approved by the court. The protective order shall provide that any violation of its terms and conditions shall be reported to the Board of Bar Overseers by anyone aware of such violation.

(B) [The Supreme Judicial Court has not reached the issue of whether the procedures governing defense counsel’s review of presumptively privileged records also apply to the Commonwealth.]

(e) Challenge to Privilege Designation.

(1) If, on inspection of the records, defense counsel believes that any record or portion thereof is in fact not privileged, then in lieu of or in addition to a motion to disclose or introduce at trial (see Subsections (f) and (g) below), counsel may file a motion to release specified records or portions thereof from the terms of the protective order.

(2) Defense counsel shall provide notice of the motion to all parties. Prior to the hearing, counsel for the Commonwealth shall be permitted to review such records in order to respond to the motion, subject to signing and filing a protective order as provided in Subsection (d)(2) above.

(3) If a judge determines that any record or portion thereof is not privileged, the record shall be released from the terms of the protective order and may be inspected and copied as provided in Subsection (d)(1) above.

(f) Disclosure of Presumptively Privileged Records.

(1) If defense counsel who obtained the summons believes that the copying or disclosure of some or all of any presumptively privileged record to other persons (for example, the defendant, an investigator, an expert) is necessary to prepare the case for trial, counsel shall file a motion to modify the protective order to permit copying or disclosure of particular records to specifically named individuals. The motion shall be accompanied by an affidavit explaining with specificity the reason why copying or disclosure is necessary; the motion and the affidavit shall not disclose the content of any presumptively privileged record. Counsel shall provide notice of the motion to all parties.

(2) Following a hearing, and in camera inspection of the records by the judge where necessary, a judge may allow the motion only on making oral or written findings that the copying or disclosure is necessary for the defendant to prepare adequately for trial. The judge shall consider alternatives to full disclosure, including agreed to stipulations or disclosure of redacted portions of the records. Before disclosure is made to any person specifically authorized by the judge, that person shall sign a copy of the court order authorizing disclosure. This court order shall clearly state that a violation of its terms shall be punishable as criminal contempt.

(3) All copies of any documents covered by a protective order shall be returned to the court on resolution of the case, i.e., on a change of plea or at the conclusion of any direct appeal following a trial or dismissal of the case.

(g) Use of Presumptively Privileged Records at Trial.

(1) A defendant seeking to introduce at trial some or all of any presumptively privileged record shall file a motion in limine at or before any final pretrial conference.

(2) Counsel for the Commonwealth shall be permitted to review enough of the presumptively privileged records to be able to respond adequately to the motion in limine, subject to signing and filing a protective order as provided in Subsection (d)(2) above.

(3) The judge may allow the motion only on making oral or written findings that introduction at trial of a presumptively privileged record is necessary for the moving defendant to obtain a fair trial. Before permitting the introduction in evidence of such records, the judge shall consider alternatives to introduction, including an agreed to stipulation or introduction of redacted portions of the records.

(h) Preservation of Records for Appeal. Records produced in response to a Mass. R. Crim. P. 17(a)(2) summons shall be retained by the clerk of court until the conclusion of any direct appeal following a trial or dismissal of a case.

NOTE

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, 915 N.E.2d 215, 227 (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, 806 N.E.2d 72, 76 (2004). See also Commonwealth v. Hart, 455 Mass. 230, 243, 914 N.E.2d 904, 914–915 (2009) (Mass. R. Crim. P. 17(a)(2) is the exclusive method to obtain records from a third party prior to trial). 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, 859 N.E.2d 400, 414–420 (2006), governs review or disclosure of presumptively privileged records by defense counsel. To reference the forms promulgated by the Supreme Judicial Court, see http://www.‌mass.gov/‌courts/‌formsandguidelines/‌dwyerforms.html.

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 Commonwealth v. Hart, 455 Mass. at 243, 914 N.E.2d at 914–915 (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).

Subsection (a). This subsection is derived from Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72, 76 (2004). See also Commonwealth v. Odgren, 455 Mass. 171, 187, 915 N.E.2d 215, 227 (2009) (Lampron procedures apply to both prosecution and defense).

Subsection (b). This subsection is derived generally from Commonwealth v. Lampron, 441 Mass. 265, 268, 806 N.E.2d 72, 76 (2004), and Commonwealth v. Dwyer, 448 Mass. 122, 148, 859 N.E.2d 400, 420 (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, 859 N.E.2d at 420 n.2.

In Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72 (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.’”

Commonwealth v. Lampron, 441 Mass. at 269, 806 N.E.2d at 76–77. Accord Commonwealth v. Mitchell, 444 Mass. 786, 792, 831 N.E.2d 890, 895 (2005) (summarizing these requirements as “relevance, admissibility, necessity, and specificity”).

“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.”

Commonwealth v. Dwyer, 448 Mass. at 148, 859 N.E.2d at 420. 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, 859 N.E.2d at 421 n.3.

Subsection (c). This subsection is derived generally from Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72 (2004), and Commonwealth v. Dwyer, 448 Mass. 122, 859 N.E.2d 400 (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.” Commonwealth v. Dwyer, 448 Mass. at 149 n.5, 859 N.E.2d at 421 n.5.

Subsection (d). This subsection is derived generally from Commonwealth v. Dwyer, 448 Mass. 122, 149, 859 N.E.2d 400, 421–422 (2006). A judge may order that even nonpresumptively privileged records be subject to an appropriate protective order. Id. at 149 n.5, 859 N.E.2d at 421 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, 859 N.E.2d at 421 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, 831 N.E.2d 890, 900 (2005).

Subsection (e). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 149–150, 859 N.E.2d 400, 422 (2006).

Subsection (f). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150, 859 N.E.2d 400, 422 (2006).

Subsection (g). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150, 859 N.E.2d 400, 422–423 (2006).

Subsection (h). This subsection is taken nearly verbatim from Commonwealth v. Dwyer, 448 Mass. 122, 150, 859 N.E.2d 400, 423 (2006).