In re A Motion to Compel

492 Mass. 811

216 N.E.3d 1206

In the MATTER OF a MOTION TO COMPEL.

SJC-13336

Supreme Judicial Court of Massachusetts, Worcester.

Argued May 3, 2023

Decided September 18, 2023

Anthony J. Cichello, Boston (Allison Lennon also present) for the respondent.

Anthony Mirenda, Boston, Laura D. Gradel, & Adam Aguirre, for Victim Rights Law Center & others, amici curiae, submitted a brief.

Andrea C. Kramer, Boston, Jamie Ann Sabino, Nicole R.G. Paquin, Samantha Jandl, & Tara Thigpen, for Women's Bar Association of Massachusetts & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

GEORGES, J.

This case concerns an order issued by a Superior Court judge compelling the production of sexual assault counselling records pursuant to a certificate issued by a magistrate of the Rhode Island Superior Court (Rhode Island court or Rhode Island magistrate) 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). The order is challenged by the record holder, the keeper of records at a rape crisis center (center). The essential question is whether the Massachusetts judge erred in declining to analyze the sexual assault counsellor's privilege, provided in G. L. c. 233, § 20J, when conducting his analysis under the Uniform Act.¹ Relying on this court's decision in Matter of a R.I. Grand Jury Subpoena, 414 Mass. 104, 109, 605 N.E.2d 840 (1993) ( R.I. Grand Jury Subpoena ), the Massachusetts judge concluded that the privilege claim must instead be raised in Rhode Island.

To best harmonize the Uniform Act with G. L. c. 233, § 20J, we deem it necessary for either the requesting State or Massachusetts to adjudicate a request for Massachusetts sexual assault counselling records in accordance with the Lampron- Dwyer protocol.² See Commonwealth v. Dwyer, 448 Mass. 122, 139-147, 859 N.E.2d 400 (2006) ; id. at 147-150, 859 N.E.2d 400 (Appendix) ; Commonwealth v. Lampron, 441 Mass. 265, 269-270, 806 N.E.2d 72 (2004). The Superior Court judge reached this same conclusion in his initial order, and but for his reliance on the general rule articulated in R.I. Grand Jury Subpoena, 414 Mass. at 109, 605 N.E.2d 840, he would have correctly applied the Lampron- Dwyer protocol in ultimately deciding the issue. On his report of this issue of first impression, we clarify the applicable standard.

Specifically, we hold that this Commonwealth's strong and clear public policy in favor of protecting victims of sexual assault compels an exception to the otherwise applicable general rule of R.I. Grand Jury Subpoena, 414 Mass. at 109, 605 N.E.2d 840, that under the Uniform Act, privilege claims should be litigated in the requesting jurisdiction. This exception is specific to records or testimony presumptively privileged by § 20J, and it applies only where an objecting party establishes a substantial likelihood that the protections of the § 20J privilege, as expressed in the Lampron- Dwyer protocol, will be abrogated in the requesting State. If such a substantial likelihood exists, then a Massachusetts judge must ensure that records or testimony presumptively privileged by § 20J will receive the protections of the Lampron- Dwyer protocol before authorizing a subpoena under the Uniform Act. Applying this standard here, we vacate the order of the Superior Court judge.^{3 ,4}

Background. The petitioner⁵ was charged by the State of Rhode Island with child molestation.⁶ The center has represented -- and the Superior Court judge assumed in reaching his decision -- that the alleged victim, a minor, was receiving counselling at the center, and that the alleged victim's counsellor there was a sexual assault counsellor. The center states that this counselling is ongoing.

A Rhode Island magistrate issued a certificate pursuant to the Uniform Act seeking to obtain from the center the alleged victim's medical records from a specific date to the present. The certificate described the magistrate's conclusions that the keeper of the records for the center was "a material witness" in the Rhode Island criminal case and that "the documents that [ ]he will bring with h[im] are relevant to the trial ... and necessary for the presentation of a defense." In particular, the Rhode Island magistrate concluded that "upon information and belief, said witness would give evidence and testimony relating to an alibi," and further, that "the witness can provide evidence and testimony that would be material and relevant to the defenses of, inter alia, the alibi generally as well as impeachment and exculpatory evidence."

One month later, the petitioner filed the certificate along with a motion to compel in the Superior Court. A hearing was then held at which the center appeared and opposed the motion to compel. After the hearing, the center filed a written opposition and the petitioner filed a supplemental memorandum in support of his motion to compel. The Superior Court judge issued an order denying the motion to compel without prejudice. He noted the center's objections based on G. L. c. 233, § 20J, and cited a lack of information as to whether Rhode Island would afford protections similar to those provided in Massachusetts. On that basis, he concluded that requiring the appearance of the record-keeper would be an undue hardship. The judge suggested that his concerns would be satisfied by either a hearing pursuant to the Lampron- Dwyer protocol in the Superior Court or a showing that the equivalent was held in Rhode Island.

One month later, a second magistrate of the Rhode Island court issued an order that the records at issue "shall be viewed in camera by the Judge/Magistrate before any documents are turned over to counsel." The petitioner presented this order to the Superior Court in a motion for reconsideration, urging that it answered the Superior Court judge's concerns. The center opposed the motion for reconsideration, and a hearing was held, at which the center argued that the Lampron- Dwyer protocol had not been met, either in Rhode Island or before the Superior Court. The center emphasized, as it had in its prior opposition, that it received no notice of the Rhode Island proceedings. The Superior Court judge noted his concern about the lack of notice to the center and expressed reservations about whether the requirements of Lampron- Dwyer had been met.

Relying on this court's decision in R.I. Grand Jury Subpoena, 414 Mass. at 109, 605 N.E.2d 840, however, the Superior Court judge issued an order in which he concluded that the privilege issue must be litigated in the requesting State, Rhode Island. Consequently, he "limit[ed] [his] analysis to the considerations set forth under" the Uniform Act. Without analyzing the privilege for sexual assault counselling records under § 20J, the Superior Court judge concluded that the showings of materiality and necessity as required by the Uniform Act were established in the certificate and that compelling attendance did not give rise to undue hardship. See R.I. Grand Jury Subpoena, supra at 108 n.4, 605 N.E.2d 840. He allowed the motion to compel but stayed his order for fourteen days. The order subsequently was stayed further on the center's motion.

The Superior Court judge again further stayed his order and all proceedings, and he reported his order to the Appeals Court pursuant to G. L. c. 231, § 111, and Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), or, in the alternative, Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004). After the appeal had been entered in the Appeals Court, this court granted the center's application for direct appellate review.⁷

Discussion. 1. Standard of review. Where a Superior Court judge reports an interlocutory order for determination by an appellate court, "the basic issue ... is the correctness of his [or her] finding or order" (citation omitted). Graycor Constr. Co. v. Pacific Theatres Exhibition Corp., 490 Mass. 636, 640, 193 N.E.3d 1083 (2022). The crux of the instant dispute is a question of law, that is, whether and to what extent a Massachusetts court must consider G. L. c. 233, § 20J, in analyzing a request made under the Uniform Act for sexual assault counselling evidence located in Massachusetts. We review de novo such questions. See Emma v. Massachusetts Parole Bd., 488 Mass. 449, 453, 174 N.E.3d 272 (2021).

2. The Uniform Act. We begin with the overarching framework of the Uniform Act, which applies to requests for in-person testimony as well as document requests. See R.I. Grand Jury Subpoena, 414 Mass. at 112, 605 N.E.2d 840. In relevant part, the Uniform Act requires that when presented with a complying certificate from an out-of-State court, a justice of the Superior Court in Massachusetts shall compel the designated witness to attend the out-of-State proceeding. See G. L. c. 233, § 13A. To comply with the Uniform Act, the certificate must, inter alia, certify that the witness is material and that his or her presence is required. See id.; R.I. Grand Jury Subpoena, supra. In Massachusetts, the Superior Court judge receiving such a certificate is directed to hold a hearing to "determine[ ]" (a) whether "the witness is material and necessary," and (b) whether it will "cause undue hardship" to compel the witness to testify. G. L. c. 233, § 13A. See R.I. Grand Jury Subpoena, supra.

3. G. L. c. 233, § 20J. Massachusetts State law privileges "information transmitted in confidence by and between a victim of sexual assault and a sexual assault counsellor."⁸ G. L. c. 233, § 20J. It provides in relevant part that "[a] sexual assault counsellor shall not disclose such confidential communication, without the prior written consent of the victim," and further, that "[s]uch confidential communications shall not be subject to discovery and shall be inadmissible in any criminal or civil proceeding without the prior written consent of the victim to whom...