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A party or interested nonparty may, by motion supported by affidavit, seek to modify or terminate an order of impoundment. The motion shall be served in accordance with URIP Rule 4 and 6(c).
No order of impoundment may be modified or terminated, except upon an order of the court and upon written findings in support thereof.
URIP Rule 10 permits a party or an interested nonparty to file a motion to modify or terminate an order of impoundment. See Republican Co. v. Appeals Court, 442 Mass. 218, 225 (2004). This rule does not pertain to an impoundment order's expiration by its own terms. Once an order of impoundment is entered, it remains an interlocutory order subject to the existence of “good cause.” Id. at 223-224. The order carries no continuing presumption of validity and it may be subject to subsequent challenges. Id. A proper challenge to the continued validity of an impoundment order is raised whenever the party seeking to modify the order comes forward with a nonfrivolous reason to do so. Id. The burden of demonstrating the existence of good cause always remains with the party urging the continued impoundment. Id. A party seeking the release of impounded court records does not bear the burden of demonstrating either that there has been a material change in circumstances or that whatever good cause may once have justified their impoundment no longer exists. Id. See also Adams v. Adams, 459 Mass. 361, 361 n.1 (2011) (husband's employer, which had sought impoundment in the first instance, did not demonstrate good cause to justify continued impoundment of the case). The motion judge is to apply the same balancing test used in determining whether to grant an impoundment order in the first instance. Republican Co., 442 Mass. at 224-225. The modification or termination of an order of impoundment may be granted only upon the court's entry of new written findings and the issuance of a new order. Cf. Care and Protection of Sharlene, 445 Mass. 756, 772 n.18 (2006) (judge's modification of original impoundment order was accompanied by written findings).
What constitutes a nonfrivolous reason to modify or terminate an impoundment order has not been clearly defined. Several cases have discussed, in broad terms, what constituted nonfrivolous attempts at modification or termination. For example, in New England Internet Café, LLC, 462 Mass. 76, 85 (2012), two different judges recognized that the plaintiffs' claims were nonfrivolous: “the first by describing them as 'persuasive' and suggesting that they posed 'important litigation of constitutional dimension,' and the second by granting their emergency motion to modify the impoundment order.” Similarly, in Republican Co., 442 Mass. at 225, the Supreme Judicial Court expressed confidence that judges would be able to “separate frivolous, repetitive, or harassing motions from those that are not,” and ensure “that parties who have secured impoundment for a certain term will not during that term be required repeatedly to make their case absent a real possibility that the good cause that once supported impoundment has in some manner become less pressing. See also Pansy v. Borough of Stroudsburg, 23 F.3d 772, 790 (3d Cir. 1994) (cited as an example in Republican Co., 442 Mass. at 225).
Relief from an impoundment order shall be sought in the first instance in the Trial Court Department where the matter originated. See URIP Rule 6.
Relief from an impoundment order of a search warrant shall be filed in the court department or division where the search warrant was returned, even if the search warrant was issued by a judge of the Superior Court pursuant to G. L. c. 276, § 3A, or if a related criminal action is pending in another court department or division. A judge of the court where the warrant was returned may request that the motion be transferred for hearing to the court department or division where the criminal case is pending. See Trial Court Rule XII, Requests for Interdepartmental Judicial Assignments.
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