Massachusetts Guide to Evidence 2025 Edition MA R EVID § 1108

(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 (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) a third-party subject who is the victim in the case shall have the opportunity to confer with the prosecutor prior to the hearing.

(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.

(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.

(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.

(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.

(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.