Supreme Judicial Court (April 9, 2008)

This case serves as a reminder that all privileged records are subject to the Dwyer protocol and may be disclosed if found to be relevant.

The defendant petitioned a single justice of the SJC challenging an order of the Superior Court denying his motion for pretrial production of privileged records of DSS concerning the complainant. While the Superior Court recognized that the social worker-client and psychotherapist-patient privileges applied to the records, and also determined that the records were relevant to the defense, the court concluded that the records were not subject to the old Bishop-Fuller protocol because they were "absolutely protected" privileged records. The single justice reserved and reported the case to the full SJC court.

While the defendant's petition was pending, the SJC replaced the Bishop-Fuller protocol with the Dwyer protocol. The SJC vacated the Superior Court's order and the case was remanded for further proceedings consistent with the Dwyer protocol. "Records protected by all statutory privileges, including the social worker and psychotherapist privileges, were subject to the Bishop-Fuller protocol, and are now subject to the Dwyer protocol." In other words, the documents should be treated as "presumptively privileged" under Dwyer, and since the court already found them to be relevant under the Lampron standard, the records should be made available to defense counsel only, and subject to a protective order. The records are not available to anyone else, absent further order of the court.