In re Production of Records to Grand Jury

• Decision Date: 02 October 1985
• Docket Number: No. 85-629-Y.,85-629-Y.
• Citation: 618 F. Supp. 440
• Parties: In re PRODUCTION OF RECORDS TO the GRAND JURY.
• Court: U.S. District Court — District of Massachusetts

618 F. Supp. 440

In re PRODUCTION OF RECORDS TO the GRAND JURY.

No. 85-629-Y.

United States District Court, D. Massachusetts.

October 2, 1985.

Susan Via, Asst. U.S. Atty., Boston, Mass., for U.S.

AMENDED MEMORANDUM AND ORDER

YOUNG, District Judge.

On September 6, 1985, the United States petitioned this court for an order directing the Massachusetts Department of Social Services ("Department") to furnish to the Grand Jury of the United States District Court for the District of Massachusetts all records, reports, and memoranda required for their investigation of a suspected crime committed within the jurisdiction of this federal court. Responding to an earlier request by the United States Attorney, the Department stated by letter that it would not produce the documents requested. The Department claims a privilege against disclosure based on Mass.Gen.Laws, chs. 66A, 112 § 135, and 119 § 51E—state statutes protecting communications to a social worker in his or her professional capacity or relating to such confidentiality.

The United States now comes before this court requesting an Order to compel the Department to produce the records, reports, and memoranda above. The United States submits only a general affidavit in support of this petition. On this record, for the reasons stated below, and in reliance upon the decision of the Court of Appeals for the First Circuit in In Re Hampers, 651 F.2d 19 (1st Cir.1981), this court Denies the petition of the United States without prejudice.

First, the Grand Jury has not yet subpoenaed the requested records, apparently believing that—in view of the letter from the Department—such a subpoena would be a futility. Still, it is much to be preferred that a Grand Jury proceed in such circumstances by way of a formal subpoena. See In re Melvin, 546 F.2d 1, 4-5 (1st Cir.1976). Proceedings to enforce or quash a subpoena are desirable as they avoid the ex parte nature of the present application.

Second, this court recognizes, as a matter of federal evidentiary law, a qualified privilege for those records of the Department which concern communications made to a social worker in his or her professional capacity, whether acquired from a specific patient or a third party, insofar as the communication relates to the care and treatment of the patient.¹ As a qualified privilege, it may be overcome by the Grand Jury upon affidavit by its Foreperson establishing two specific elements. The affidavit must show that:

1) The Grand Jury needs the documents in a federal criminal investigation conducted pursuant to its duty under law, and

2) The requested documents, or equally probative information, cannot be obtained elsewhere through reasonable efforts.

Should such an affidavit be filed with the court, the court will review the matter afresh.

I.

The United States argues that the Department errs in claiming a privilege under Massachusetts state law because state-created privileges are not controlling in federal criminal cases but, rather, are determined by federal common law. United States v. Chiarella, 588 F.2d 1358, 1372 (2d Cir.1978), rev'd on other grounds, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980). Therefore, the United States reasons that federal law pertaining to privileges applies in criminal cases tried in federal courts. Fed.R.Evid. 501; See United States v. Craig, 528 F.2d 773, 776 (7th Cir.), cert. denied, 425 U.S. 973, 96 S.Ct. 2171, 48 L.Ed.2d 796 (1976), reh'g, 537 F.2d 957 (7th Cir.), cert. denied, 429 U.S. 999, 97 S.Ct. 526, 50 L.Ed.2d 609 (1976). In effect, the United States suggests that because the federal common law has not created any of the privileges asserted in this case by the Department, this court should not recognize them now.

On the other hand, the Department contends that it is bound by Massachusetts law and cannot release these records without the written consent of the subject, his parents, or guardian, or pursuant to an order from a court of competent jurisdiction. Mass.Gen.Laws chs. 66A, 112 § 135, 119 § 51E. The Department specifically draws the attention of the court to a decision of the Massachusetts Supreme Judicial Court interpreting this privilege. Commonwealth v. Collett, 387 Mass. 424, 439 N.E.2d 1223, 1226 (1982).

II.

Even were the state privilege to have the scope described by the Department, this court is not required to recognize this privilege in federal criminal proceedings. United States v. Gillock, 445 U.S. 360, 368, 100 S.Ct. 1185, 1191, 63 L.Ed.2d 454 (1980) (Where Tennessee law recognized a legislative privilege for state senators, the federal court in a criminal prosecution was not required to recognize an analogous privilege).² In addition, Fed. R.Evid. 501 instructs this court that recognition of a privilege "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." Above all, Rule 501 envisions the flexible development of the federal common law of privilege on a case-by-case basis. Gillock, 445 U.S. 360, 367, 100 S.Ct. 1185, 1190.

In developing the federal common law of privilege, this court must appraise both the federal and state interests in this matter. The purpose and force of the particular federal interest involved must be balanced against the rationale and comparative strength underlying the particular evidentiary privilege claimed. Ott v. St. Luke Hospital of Campbell County, Inc., 522 F.Supp. 706, 707 (E.D.Ky.1981). Moreover, as a principle of comity, federal courts should recognize state evidentiary privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy. In Re Jury Impanelled January 21, 1981, 535 F.Supp. 537, 541 (D.N.J.1982); Shafer v. Parkview Memorial Hospital, 593 F.Supp. 61, 63 (N.D.Ind.1984) Both citing United States v. King, 73 F.R.D. 103, 105 (E.D.N.Y. 1976).

III.

In Re Hampers, supra, suggests the analytical framework for balancing the differing state and federal interests in this case. In Hampers the Court of Appeals applied a four point analysis to determine whether, and to what extent, the federal common law of privilege would recognize a statutory privilege against disclosure given the State Tax Commissioner under Mass. Gen.Laws ch. 62C, §§ 21 and 22. Simply phrased, the four factors follow:

1. Would the courts of Massachusetts recognize such a privilege?

2. Is the state's asserted privilege "intrinsically meritorious in our independent judgment"?

3. Should such a privileged relationship be "sedulously fostered"?

4. Is injury that would inure to the relation by the disclosure of the communication greater than the benefit thereby gained?

In Re Hampers, 651 F.2d 19, 22-23, relying on American Civil Liberties Union of Mississippi, Inc. v. Finch, 638 F.2d 1336 (5th Cir.1981). See Schafer v. Parkview Memorial Hospital, Inc., 593 F.Supp. at 64.

Under the Hampers analysis, the court initially must ask whether the courts of Massachusetts would recognize such a privilege. That they would—and have—is incontrovertible. The Massachusetts legislature speaks clearly about privileged communications between a patient and his or her social worker. Mass.Gen.Laws chs. 66A, 112 § 135, and 119 § 51E. Barring the application of a statutorily specified exception, all communications to a social worker, in his or her professional capacity, whether they were acquired from a specific client or a third party, are privileged. Commonwealth v. LeCain, 19 Mass.App. Ct., 1034, 477 N.E.2d 205, 206 (1985) (citing Commonwealth v. Collett, 387 Mass. 424, 428-430, 439 N.E.2d 1223 (1982));³ see Commonwealth v. Dunne, 394 Mass. 10, 474 N.E.2d 538, 543 (1985). Certainly the Commonwealth of Massachusetts recognizes the social worker-patient privilege.

Second, this court asks whether the state social worker-patient privilege is "intrinsically meritorious." The court so rules. The very confessional required for a patient's cure should not lightly be used to cause him harm. Between a social worker and a patient, the avenues of painful and even embarrassing disclosure must not be obstructed by fear and mistrust. With reason and from experience, this court respects both the legislative policy evident in Mass.Gen.Laws chs. 66A, 112, § 135, and 119, § 135, and the judicial process made manifest in the decisions of the courts of the Commonwealth. Under these circumstances and upon the meager record in this case, this court can see no reason to second-guess the Massachusetts legislative determination that the patient-social worker relationship should be "sedulously fostered."

At this point in time the Grand Jury offers little to substantiate the benefit to be gained by ordering the Department to disclose its records. Only an adequate affidavit could provide such evidence. Absent this, the court concludes that the potential for injury to the social worker-patient relationship could well be greater than the benefit gained by the Grand Jury.

IV.

The court does not underestimate the difficulty of the Grand Jury's...