In re Grand Jury Investigation

• Decision Date: 12 January 2015
• Docket Number: SJC–11697.
• Citation: 22 N.E.3d 927,470 Mass. 399
• Parties: In the Matter of a GRAND JURY INVESTIGATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 399
22 N.E.3d 927

In the Matter of a GRAND JURY INVESTIGATION.

SJC–11697.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 4, 2014.
Decided Jan. 12, 2015.

22 N.E.3d 929

Aaron M. Katz (Patrick Welsh with him), Boston, for the petitioner.

James L. Sultan (Charles W. Rankin with him), Boston, for the amicus curiae.

Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

LENK, J.

This appeal arises from a petition brought under G.L. c. 211, § 3, challenging a Superior Court judge's order approving the issuance of a grand jury subpoena duces tecum that compels a law firm to produce a cellular telephone. The single justice reserved and reported the matter to this court, and our analysis is confined to the limited record before us.

The Commonwealth contends that the telephone belonged to John Doe,¹ the target of a grand jury investigation; that it was transferred from Doe to the law firm to obtain legal advice; and that it contains in the information stored on its memory, particularly in its record of text messages, evidence of a crime under investigation by the grand jury. The Superior Court judge determined that, while a subpoena served on Doe would violate his right against self-incrimination, and a subpoena served on the law firm would violate the attorney-client privilege, a subpoena compelling the law firm to produce the telephone could be served upon an ex parte showing by the Commonwealth of probable cause sufficient for the issuance of a search warrant. We conclude that, on the record before us, the attorney-client privilege protects Doe against compelled production of the telephone by the law firm, and that the protection afforded by the attorney-client privilege may not be set aside based on a showing of probable cause. We therefore reverse the Superior Court judge's order.

1. Background. The law firm began representing Doe in April, 2013. According to the Commonwealth, in June, 2013, Doe transferred the telephone to the law firm in connection with its provision of legal services to him.² In March, 2014, the Commonwealth

moved under

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Mass. R. Prof. C. 3.8(f), 426 Mass. 1397 (1998), for judicial approval of a grand jury subpoena compelling the law firm to produce the telephone.³ A Superior Court judge held a hearing on the motion and issued a ruling from the bench, followed by a written decision a few days thereafter. The judge denied the motion, but noted that his denial was without prejudice to refiling. The judge indicated that, if he determined upon such refiling that the Commonwealth had, through an ex parte proceeding, established probable cause sufficient to justify a search under the Fourth Amendment to the United States Constitution, he would allow the Commonwealth to issue a subpoena compelling the law firm to produce the telephone. At a subsequent hearing, the judge allowed the Commonwealth's

second motion for judicial approval of the grand jury subpoena directed at the law firm, but stayed issuance and execution of the subpoena to allow Doe to file a petition for relief in the county court pursuant to G.L. c. 211, § 3. The judge also ordered that, if the law firm indeed had the device in its possession, it not alter, transfer, dispose of, return, or otherwise render the telephone unavailable pending further court order.

After Doe filed his G.L. c. 211, § 3, petition, the law firm filed a motion to intervene. In response to a request by the single justice, the law firm submitted an affidavit indicating that, if the petition were dismissed, and if the Commonwealth served the subpoena on the law firm, it would refuse to comply, subjecting itself to a finding of contempt. Based on this affidavit, the single justice reserved and reported the matter to this court.⁴

2. Discussion. a. Standard of review. While we review a trial judge's decisions on discovery matters for an abuse of discretion, our review of mixed questions of fact and law, including questions of the validity of an assertion of the privilege against self-incrimination, is de novo. McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 190, 972 N.E.2d 1037 (2012) (citation omitted). Our review of a decision involving the attorney-client privilege is likewise de novo. Clair v. Clair, 464 Mass. 205, 214, 982 N.E.2d 32 (2013), quoting Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 302, 901 N.E.2d 1185 (2009).

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b. The right against self-incrimination, the act of production doctrine, and the attorney-client privilege. We conclude that the subpoena was issued improperly. This conclusion derives from the application of three well-established principles: the privilege against self-incrimination, the act of production doctrine, and the attorney-client privilege.

The Fifth Amendment to the United States Constitution provides, in relevant part, that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Article 12 of the Massachusetts Declaration of Rights similarly provides that “[n]o subject shall ... be compelled to accuse, or furnish evidence against himself.”

The United States Supreme Court has “made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect,” because production may constitute an admission “that the papers existed, were in [the witness's] possession or control, and were authentic.” United States v. Hubbell, 530 U.S. 27, 36, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000). With respect to art. 12, we similarly have held “that the act of production, quite apart from the content of that which is produced, may itself be communicative.” Commonwealth v. Doe, 405 Mass. 676, 679, 544 N.E.2d 860 (1989). By turning over evidence in response to a subpoena, a defendant may be “making implicitly a statement about its existence, location and control,” and “[t]he implied statement would also function as an authentication.” Commonwealth v. Hughes, 380 Mass. 583, 592, 404 N.E.2d 1239, cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 129 (1980). See Commonwealth v. Doe, supra (by turning over materials in response to subpoena, witness “would be testifying, in effect, as to the existence and location of those materials, as well as to the control that he had over them,” and implicitly would be “authenticating those materials”).

Indeed, the protection against the implicit self-incrimination involved in compelled production stands on even firmer ground under art. 12 than it does under the Fifth Amendment. Unlike the Fifth Amendment, art. 12 specifically prohibits compelling a defendant to “furnish evidence against himself.” We have long recognized, based on the “difference in the phraseology between the Massachusetts Constitution and the Fifth Amendment,” Opinion of the Justices, 412 Mass. 1201, 1210, 591 N.E.2d 1073 (1992), that “the protections of art. 12 extend beyond the safeguards afforded by the United States Constitution.” See Doe, 405 Mass. at 678, 544 N.E.2d 860. The requirement that a subject not be forced to “furnish evidence against himself,” we have observed, “may be presumed to be intended to add something to the significance of” the preceding protection against compelled self-accusation. Opinion of the Justices, supra. Accordingly, we have more broadly construed the protections afforded by the act of production doctrine under art. 12, in comparison with the Fifth Amendment. See id. at 1210–1211, 591 N.E.2d 1073 ; Commonwealth v. Burgess, 426 Mass. 206, 218, 688 N.E.2d 439 (1997).

In Fisher v. United States, 425 U.S. 391, 402, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976) (Fisher ), the United States Supreme Court held “that compelled production of documents from an attorney does not implicate whatever Fifth Amendment privilege the [target of an investigation] might have enjoyed from being compelled to produce them himself.” The

Court went on to conclude, however, that, apart from the right against self-incrimination, the attorney-client privilege protects certain materials from production by an attorney. If a client “transferred possession of ... documents

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... from himself to his attorney in order to obtain legal assistance, ... the papers, if unobtainable by summons from the client, are unobtainable by summons directed to the attorney by reason of the attorney-client privilege.” Id. at 405, 96 S.Ct. 1569.

“Under the facts and circumstances presented” in this case, the motion judge was “satisfied that had a subpoena been served on [Doe] personally, he would be able to assert a privilege against production of his [tele]phone based on the Fifth Amendment and/or art. 12.” In its brief, the Commonwealth acknowledges that Doe could not be compelled to produce the telephone had he retained possession of it. Nonetheless, the Commonwealth offers several arguments that would avoid the inevitable implications of that concession under the United States Supreme Court's decision in Fisher. In essence, these arguments seek to sever the chain that...