In the Matter of a Motion to Compel (Massachusetts 2023)

Summary

The court held that a Massachusetts judge considering an out-of-State request for sexual-assault counseling records must protect the Massachusetts statutory privilege when there is a substantial likelihood that the requesting State will not provide equivalent safeguards. The judge must ensure compliance with the Lampron-Dwyer protocol before authorizing production, and the court vacated the order compelling the records because Rhode Island protections were insufficient.

Holding

Whether the Uniform Act permits a Massachusetts court to disregard the Massachusetts sexual-assault counseling privilege. Although privilege issues ordinarily are litigated in the requesting jurisdiction, an exception applies to records or testimony presumptively protected by the Massachusetts sexual-assault counseling privilege when the objecting party establishes a substantial likelihood that the privilege's protections will be abrogated in the requesting State.

What Massachusetts procedure must precede authorization of the subpoena. When the objecting party establishes a substantial likelihood that the privilege will be abrogated, the Massachusetts judge must ensure that the records receive the protections of the Lampron-Dwyer protocol before authorizing a subpoena. The Rhode Island protections described here were insufficient because they did not ensure notice to the record holder and stringent nondisclosure safeguards.