In the Matter of A Grand Jury Investigation

• Decision Date: 23 July 2002
• Citation: 437 Mass. 340,772 NE 2d 9
• Parties: IN THE MATTER OF A GRAND JURY INVESTIGATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

437 Mass. 340

772 NE 2d 9

IN THE MATTER OF A GRAND JURY INVESTIGATION.

Supreme Judicial Court of Massachusetts, Middlesex.

April 4, 2002.

July 23, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Richard W. Renehan(Ellen C. Meyer with him) for the school.

Loretta M. Smith,Assistant District Attorney(Katharine B. Folger, Esther M. Bixler, & Afton M. Templin, Assistant District Attorneys, with her) for the Commonwealth.

MARSHALL, C.J.

A grand jury are investigating whether a private school failed to comply with its mandatory duty under G. L. c. 119, § 51A, to report possible child abuse to the Department of Social Services(department).¹The case turns on whether the school violated § 51A by failing to report to the department allegations of the abuse of children who, when the school became aware of the alleged abuse, were under eighteen years of age.²,³

A grand jury subpoena duces tecum was served on the school requesting production of eighty-five listed categories of documents "in any way pertaining to allegations of abuse at [the school] from September 1995 to the present."⁴The school refused to provide some of the subpoenaed documents on the grounds that they were shielded from production by the attorney-client privilege and the work product doctrine.The Commonwealth moved to compel production of the withheld documents and, while its motion was pending, moved for leave to file an ex parte prosecutor's affidavit in support of its application to apply the "crime-fraud" exception to the withheld documents.Under the crime-fraud exception, the attorney-client privilege does not extend to client communications "if the communication seeks assistance in or furtherance of future criminal conduct."SeePurcell v. District Attorney for the Suffolk Dist.,424 Mass. 109, 114(1997).

In three separate rulings in November and December, 2000, that reflect a careful analysis and attention to detail, the judge ordered the school to provide the Commonwealth with certain of the withheld documents.To permit an appeal from the motion judge's orders, the school continued to withhold most of the challenged documents, prompting the Commonwealth to file a complaint for contempt.⁵On January 17, 2001, a judgment of civil contempt entered against the school, from which the school timely appealed.⁶We transferred the case here on our own motion.We affirm the contempt judgment in part and vacate it in part.We determine, first, that the judge was correct to conclude that neither the attorney-client privilege nor the work product doctrine attaches to one class of disputed documents, the internal investigative reports of alleged student-on-student abuse that the school conducted in April, 1999.⁷As we explain in more detail below, these documents are not privileged in the circumstances of this case, where, among other factors, teachers and school officials were mandated by § 51A to report if they had "reasonable cause to believe" that abuse of a child under the age of eighteen years had occurred.G. L. c. 119, § 51A.None of the public policy interests that are furthered by recognizing the attorney-client privilege or the work product doctrine is advanced by attaching these privileges to the school's investigative documents.

The remaining disputed documents include investigation summaries, draft correspondence to third parties, and notes taken by the headmaster of conversations with the school's attorney (school's attorney) and, in some instances, with a public relations consultant (consultant) hired by the school.After reviewing a prosecutor's affidavit submitted ex parte by the Commonwealth, on December 18, 2000, the judge ordered some of the disputed noninvestigative documents produced pursuant to the "crime-fraud exception" to the attorney-client privilege.SeePurcell v. District Attorney for the Suffolk Dist., supra at 112-113.In a matter of first impression, we conclude that the judge's reliance on the allegations in the ex parte affidavit was not an abuse of discretion in the circumstances of this case.

We vacate so much of the contempt judgment as requires production of communications relating solely to three students, described more fully herein as victims one, two, and three, who disclosed their purported abuse to school officials at a time when they were at least eighteen years of age, thus bringing them outside the purview of § 51A.SeeG. L. c. 119, § 51A;110 Code Mass. Regs. § 2.00(1996).The Commonwealth has not met its burden of proving that the crime-fraud exception applies to attorney-client communications regarding these victims because, as the Commonwealth conceded at oral argument, failure to report the abuse of these victims to the department "is not a crime" under § 51A.SeePurcell v. District Attorney for the Suffolk Dist., supra at 114("the crime-fraud exception should apply only if the communication seeks assistance in or furtherance of future criminal conduct").

We affirm so much of the contempt judgment as applies to attorney-client communications concerning the school's internal investigation and to any other communications concerning the possible abuse of other children at the school who were under the age of eighteen years when the school learned of their allegations.Failure of the school to report possible abuse of those children might have violated § 51A.We remand the case to the Superior Court for further proceedings consistent with this opinion.

We turn now to the salient evidentiary background.⁸

I

A

The school is a private preparatory school.In early March, 1999, the school's headmaster was confronted in rapid succession with a series of disclosures about alleged student-on-student physical and sexual abuse.Specifically, on March 6 and 7, 1999, a boarding student at the school (victim one) told the headmaster that, two years earlier when he was sixteen, he had been sexually abused by other male students at the school.Victim one told the headmaster that the perpetrators had held him down, licked his face, groped him frontally and from behind, and digitally penetrated his rectum through his boxer shorts.Victim one identified two other student victims by name (victim two and victim three, respectively) as well as five student perpetrators, two of whom were still students at the time of the disclosure.There is no evidence in the record to suggest that the headmaster or any other school teacher or official had previous knowledge of the attacks on victim one.On March 9, 1999, victims two and three separately came forward to the headmaster with allegations of similar abuse.Victims one, two, and three were all at least sixteen years of age when they were allegedly molested, and at least eighteen years of age at the date of their respective disclosures to the headmaster.

From the affidavit of the school's attorney, we glean the following.On March 7, 1999, a Sunday, the school's attorney received a telephone call from the headmaster "about allegations of sexual misbehavior between male students at the [school] that had occurred more than two years before and had just been brought to the Headmaster's attention."⁹The following day, at the headmaster's request, the school's attorney "reported the allegations" to the department.Shortly thereafter, the attorney received a telephone call from the department requesting additional information about the abuse allegations, which he obtained from an unnamed source and transmitted by telephone to the department that same day.¹⁰In mid-March, an attorney (victims' attorney), representing victims one and two, spoke with the school's attorney regarding his clients' allegations.On March 16, 1999, the school's attorney reported to the department "the supplemental information [he] had recently received from" the victims' attorney "concerning the allegations of one of the students."

The school's attorney's affidavit is cursory, at best, providing no details about his conversations with the department, even though the school does not attempt to argue, nor could it, that any conversation between the attorney and the department fell within the school's attorney-client privilege.¹¹

The details of the school's communications with the department are provided by the Commonwealth, albeit with a somewhat hazy chronology.¹²The Commonwealth maintains, in pertinent part, that, beginning in March, 1999, and during that "spring," the school's attorney had telephone conversations with the department, including its then general counsel.According to the Commonwealth, the school's attorney told the department of incidents that possibly involved some inappropriate touching while boys were lying atop boys.The school's attorney also told the department, among other things, that the incidents involved three male students who were all at least eighteen years of age when the school learned of their allegations and who had complained of "pig piles" involving the touching of crotches and genitals.The Commonwealth also claims that during these telephone conversations, the department discussed with the school's attorney the definition of sexual abuse, including sexual touching and penetration, and told the school's attorney that the boys were all too old to have information concerning their cases entered into the department computer for screening and possible action.¹³SeeG. L. c. 119, § 51B;110 Code Mass. Regs. §§ 4.20(3),¹⁴4.21 (2000).¹⁵All parties agree that the school's attorney had his last substantive conversation with the department concerning victims one, two, and three some time before April 1, 1999, when the school began an internal investigation that we describe in the next section.One communication did occur on April 30, 1999, well after the internal investigation had concluded, when the school's attorney returned a telephone call from the department regarding a media inquiry to the department, the...