-: SJC 13127, in the matter of an impounded case.
-: Attorney Self.
-: Yes, good morning.
May it please the court.
My name is Rachel Self
and it is my privilege to be here today,
representing Mr. Noah Campbell-Halley.
Your honor, as this matter presents
a straightforward question
where a defendant has firmly demonstrated
that he is entitled
to social worker treatment records
and those records were erroneously destroyed.
Did the motion judge abuse
his broad discretion permitted to him
to remedy extraordinary circumstance issues
in allowing a limited deposition of the social worker
to replicate the information in those records.
As an initial matter, your honors,
it is our position that BR does not have standing
to bring this case before the court.
The rule 17 protocol allows the rule 17 hearing to be
the only opportunity for the party
or non-party to voice their objection.
We had that hearing more than a couple of years ago,
and ultimately, the Superior Court Judge Rufo determined
that we were entitled to the records
and we had satisfied the Lampron-Dwyer protocol.
At that point, no appeal is taken.
There is no
standing for a non-party to file a 211-3.
So at this point we don't believe
that we should be before this court on a 211-3
in a pretrial matter to address this
when we have already had
the full Lampron-Dwyer protocol hearing,
determining that these records were necessary
for the defendant to provide a defense on the case.
-: But the situation's changed, hasn't it counsel?
-: It actually...
-: The records are not available.
-: Well, yes, so that's the issue,
but the information in the records and the fact
that the information in those records were necessary
to present the defense in this case, that hasn't changed.
And so what we've been trying to do
in light of the extraordinary circumstances in this case
is appreciating the fact that Lampron-Dwyer
did not ever mention deposition as an option in curing,
in obtaining information.
Lampron-Dwyer also did not anticipate records
being erroneously destroyed and not
maintained. -: But Lampron-Dwyer
is a protocol as is rule 17 to gather
existing information
does nothing. -: Exactly.
-: You've all been involved in Lampron-Dwyer situations
where you say,
are there any records and the response
to your chagrin is no.
And then the next response is then we'll go get some,
go make some -: Yes.
Well, and Justice Gaziano,
that's not what we're asking to have happen here.
And as you very aptly pointed out,
what we're seeking is information.
And typically, the way that information is maintained
is within records or at least that's how
that's normally done.
However, as the case law has made very clear,
sometimes the information is not necessarily in records.
Sometimes it's in data,
sometimes it's not maintained in paper that kind of thing,
but in this particular instance,
the records were supposed to be maintained
and simply were, it's our position,
they were destroyed in violation
of the social workers ethical obligations.
-: I think, I agree with you that
the judge under just general rule 14 authority
had the ability to fashion a remedy
for the inadvertent destruction of the evidence
that be in the summary, right?
Why isn't that enough?
-: So the summary, your honor, isn't enough
because unfortunately,
the summary doesn't provide any information.
First of all, it's our understanding that there were
a minimum of successions
between the initial SANE and the second SANE.
And what was provided was a one and a half page summary
that did not go into any of the...
It didn't go into any of the protocols,
the practices, the way questions were asked.
You know, and so the position that we're in here
is a very difficult one and that we already know we have...
-: But how's that different if you got Lampron-Dwyer records
and they just were summary in nature,
and then you said, geez, this isn't really useful,
I'd like to see how the question was done.
All those questions you have during cross examination
that naturally come out,
that you're fighting for your client for.
I understand it,
but -: No, you're directly-
-: oftentimes records are incomplete.
-: And you're directly on point, your honor,
but at least we would know
and have the ability to effectively cross examine
for the opportunity for the defense and, but PS,
it's also presuming
that the Commonwealth is going to call Ms. Sayward,
and we're going to have the opportunity
to cross examine her.
At this point, we would then have the records
or how the records weren't maintained,
or what wasn't done and how it wasn't properly done,
or the opportunity to discuss it with our expert and say,
listen, this wasn't done, that wasn't done.
Oh, they don't have this, they don't have that.
At point now, what we do know for sure
is that we have a social worker
who failed to maintain the records,
who absolutely did not follow protocols,
who also failed to follow orders of the court.
So we have a situation where there's somebody
who clearly doesn't necessarily understand
how things might properly need to be done.
And the first time that we're supposed to explore that
is a trial.
I mean, even as common as we know,
dependence on improvised cross examination,
no matter how virtualistic is not going to necessarily be
the best way to go about this.
And we have the opportunity right now, your honor...
-: Lemme say a clarifying question for me, please,
is whether or not she's going to testify
the social worker dependent upon whether or not she's called
as a first complaint witness?
-: No, no.
-: Okay.
-: No, she is not the first complaint witness.
Ms. Sayward became involved because she...
-: The child mentioned to the parent or somebody, right?
That's the first complaint.
-: So the disclosure,
this is another issue that we're dealing with in this case,
your honor, and there's quite a few of them,
but one of them is that the disclosures have never been,
there's never been some clean disclosure here.
This is a very, very,
for lack of a better term.
It's not a clear cut case.
This is not a situation where the child
went to a doctor and had observed
some sort of physical injury
or the child very clearly said to his parents,
mommy, daddy, you know, this person is touching me.
There is never been... -: Know, how you,
you know, very well, how rare that typical case
you're talking about is actually
the typical case that's the antithesis of the typical case.
But while I have you,
why isn't everything that you're raising issues
of discovery, which is really inconsistent
with Lampron-Dwyer?
-: Absolutely your honor,
because we already know that these meetings,
we already know that these sessions happen
and at no point, are we seeking to obtain new information
or newly discovered information,
or go on any sort of phishing expedition
and three superior court justices
at extensive litigation at the lower level
determined that we were entitled to the information
in these records.
So it's not a discovery tool that we're using here,
we know that these meetings took place.
We know that the child went from basically saying,
we didn't have chicken last night to saying,
no, we had chicken, mashed potatoes stuffing, gravy,
and PS, let me ask my mom to be sure
that we didn't also have dessert.
This is a situation...
-: Can I get a clarification again?
And maybe I'll ask Commonwealth,
but whether or not she testifies depends upon what,
in your view, if it's not first complaint.
Why is she going to testify?
-: Your honor, at this point,
the reason that she would testify would be to...
Well, and whether or not the Commonwealth calls her
as I said, I don't necessarily know
that the Commonwealth would,
but we would then potentially call her,
or, and at this point also, unfortunately,
this is one of the limitations that we're dealing with
is whether or not we would
because we haven't had an opportunity yet to see
how she examined this child
and whether or not the examination was suggestive,
and whether or not how the questions were asked,
what theory was used, what practices were put in place for.
-: Have you ever seen social worker records
that have that in them?
-: Well, your honor. -: All those niceties
about what theory was used and how they question?
-: No, and it's a very good point in that,
no case is ever a perfect case,
nobody ever gets a slammed on case,
but typically a case is not this mess.
-: What my understanding is,
they're gonna put their case on,
and there's going to be evidence
that there was a nondisclosure
in the first SANE interview, right?
And then, you're gonna cross examine everybody
and say, well, you had a chance, you were comfortable,
you spoke to these people and you didn't say anything.
That's what how these things play out.
And then, it could come up that she disclosed,
the victim disclosed to the second,
to the therapist, and then there was disclosure.
But I'm still not getting
what your deposition's going to do
other than give you information you wouldn't otherwise
be privy to, were those records in existence.
-: So the unfortunate reality Justice Gaziano
is we don't know that
because we've never had anything to look at or see
because they were unethically destroyed.
A social worker is required to keep the record
seven years past the age of majority for any minor
that it interviews.
She is the highest level of social worker
with recent renewed licensure,
knowing that she needed to do this.
And unfortunately, to your point,
we simply don't know whether the records,
we don't know what they contain,
because we simply have been provided
with pretty much nothing at this point.
So what we are attempting to do,
is ensure that we are effectively representing
Mr. Campbell-Halley, that we're preparing our defense,
that we are calling the experts
that we feel are necessary to have that ability
to make that defense.
And you're absolutely right.
If the records had been maintained and complied,
that's what we absolutely would've preferred
because then, I would've known
that I had done my work.
I would be able to then effectuate my strategy
on what the appropriate defense is here
and obviously we have now,
it's basically, it's a mystery.
Now, and it's a mystery, not...
-: Can I ask one question?
Has there ever been a Lampron-Dwyer deposition ever?
-: So at this point, your honor,
what we have seen is we have seen depositions
and I call the court's attention to something
that was a very similar case,
but in the record, appendix at,
I believe it's either 609 or 610.
We have an affidavit and unfortunately her case was sealed,
but we have an affidavit from Attorney Janice Basil,
who in a situation similar to that,
where the records were ordered to be provided,
and they were destroyed.
Judge Botsford, who was the judge in that case,
or ordered a deposition of the psychologist in that case,
and Ms. Basil and I believe it was Mr. DeAngelo
went to Nevada and took this deposition
to obtain the information was out of...
-: That's a trial level.
So there's no appellate case ever saying you can have,
'cause I assume we have, unlike you and Justice Gaziano
haven't seen thousands of these,
but I assume we have bad note taking sometimes
by social workers or psychologists.
So but we have no appellate case ever ordering a deposition.
-: Well, no, what we do have what we do
because there was also,
there have been cases where motions for new trials
were ordered and then ultimately the records were destroyed.
And so then the judge said,
okay, well we need to try to recreate this record.
And so you can.
-: But Justice Cypher did do that.
I mean, she did approve the summary.
So we have the summary.
-: But your honor, the summary does...
It's our position that when you have a social worker
who at our July 14th hearing that we had with Judge Fishman,
the social worker admitted,
she didn't even know the difference
between a record and a summary.
So while we have this summary
that was provided by her that is basically,
a one in a quarter page summary
to what would've been six treatment sessions
when she admits that she doesn't even necessarily know
what a summary is.
It's absolutely, it's very concerning to then say
at a pre-trial stage.
And again, I keep going,
I keep thinking that this is where this case
has the opportunity to really make...
Prevent an injustice,
is that we are still at the pre-trial stage.
So to be complaining that we don't like the dessert menu
when we haven't even chosen the restaurant yet,
we still have a lot of protections in place for BR
in this case, after a determination.
-: Aren't you changing the rule 35 standard?
-: No, because depositions, we've already addressed.
So rule 35, we're not trying to use rule 35
to get around rule 17
because we've already established
that the privilege is pierced in this case.
So rule rule 35 and we've extensively briefed it
in our briefs allows for depositions
in extraordinary circumstances.
What we really think
is the most appropriate remedy here, your honor,
and as we propose to Judge Gilday
in our motion for appropriate relief
is that this testimony should be excluded.
But what he did was he utilized his broad discretion
to craft a remedy,
to make sure that the interests of justice were protected,
but also the Commonwealth's interests were protected.
And as we very well know, no matter how
compelling... -: Counsel,
can I ask you a question, counsel?
The point of the deposition that was ordered
was to recreate the destroyed documents, right?
-: The point of the deposition was to obtain the information
that would have been in the destroyed documents.
-: And what is the difference
between your answer and my question?
-: Well, I think the difference is we're not looking
to obtain any information we weren't already entitled to.
We're not looking to dive down
and get completely super fluid.
-: And you think the records would have shown
that this social worker
improperly asked questions, suggestive questions,
that's your position?
-: My position is, unfortunately, we simply don't know.
And so what I...
-: But if the point of the deposition
is to recreate these documents that have been
inadvertently destroyed as the judge found,
it seems to me that your deposition,
if the point of it is to recreate it,
would be limited to what was in the documents?
-: Absolutely. -: That's no longer available.
-: Exactly.
-: And so in order for you to say that, you know,
that the chicken dinner versus the dessert menu analogy
that you're making is, it would seem to require us
to believe that these destroyed documents somehow reflected
the social workers improper questioning of the victim.
-: So I don't necessarily agree with your honor,
because at this point, what would seems to be missing
in the analysis is the fact that
we have not been provided with anything.
-: Well, you have the summary.
-: But this again, your honor, it's our position.
That summary is not sufficient
because we don't even know how many times she met
with this child.
We don't even have....
-: I thought you said it was six?
-: No, what we have is a presumption based on DCF records
that she had met with him approximately six times.
But what Judge Fishman was trying to do
in the July 14th hearing
was determined by ordering the mass health records.
At least even how many times this child definitely met
with this person in that period.
We are so limited in the information that we have,
and the idea that we would be flying blind at,
when we have the ability
to remedy this injustice, pre-trial.
That's the thing.
He hasn't been convicted yet.
This isn't a...
We have the ability to craft a remedy,
pre-trial here.
And as your honors, very well know,
this is the time where we,
no matter how compelling the justification for privilege,
if honoring that privilege has the effect of depriving
the defendant of his constitutional right to a fair trial,
we have to give higher priority to the constitutional right
and not the legislatively created privilege.
So in this situation, unfortunately, your honors,
we know that there were these meetings.
We know that there was this treatment.
And unfortunately, at that point, we are blind.
And even if the records were limited,
as Justice Gaziano suggested,
and even if they weren't ideal and they never are,
we had at least have something to work with.
And it's so significant in such a tenuous case
for the Commonwealth, whether we have uncorroborated,
unsubstantiated conflicting stories, where the child says,
it happened on Mondays.
And we have teachers saying it didn't happen on Mondays.
How did these answers,
how did this same go from A to B?
And that's what we're trying to figure out.
And it's not...
And it really does hinge on,
particularly because of children's susceptibility
to questioning.
It hinges on how,
even what technique was used, we don't know, right?
So this is and with no ability or records, or anything,
I'm presuming what?
Even if the Commonwealth does not call her and say,
I called her, and then I'm trying to question her.
And we're presuming she would show up
because she certainly doesn't
necessarily respect court orders
where a capias had to issue for her to come to court.
And so, then she says, I don't remember.
And I have nothing
to even to work with, impeach a trial,
to do anything to defend the case.
So it is a significant issue and appreciating the fact
that an understanding why in BR's brief
and in the Commonwealth's brief,
of course, we're not seeking to turn Lampron-Dwyer
into deposition dance stage, right?
That's not it.
What we're simply trying to do
is utilize the Superior Court Judge Gilday's,
broad discretion remedy that he crafted
to which rule 35, absolutely permits
and we cited to several cases in our brief
in certain limited circumstances where depositions
have been appropriate.
And it's our position that in this case,
it is appropriate,
appreciating the extraordinary circumstances.
-: Okay, thank you very much. -: Thank you very much.
If there are no further questions,
I know I'm out of time and I've rest on my briefs.
Thank you, your honors.
-: Attorney Foote.
-: Good morning, your honors.
And may it please the court.
Katherine Foote on behalf of the appellee,
the victim witness.
The single justices decision should be upheld
for three reasons, but before I address those reasons,
I'd like to start by addressing a few points raised
by the defendant.
First, as to the superior court order,
the treating social worker in that case was out of state
and located in Nevada,
which is often, one of the...
Which often is provided for under rule 35 for depositions
because the witness is outside of the subpoena power
of the court.
In addition,
under for recreating the records
in a motion for a new trial in those instances,
often Lampron-Dwyer wasn't an issue there.
So the situation is entirely different
than this situation here.
In addition, if you look to
pages 579 and 580 of the record appendix,
which is where the defendant's proposed protocol
for the deposition is located,
the subject of the deposition is incredibly broad.
It's all treatment of BR between April 2nd and May 7th.
And that the Ms. Sayward has no ability
to refuse to answer questions
regarding BR's treatment during that time period
on the grounds of privilege.
It's not a limited deposition
that would be just what was included necessarily
in the treatment records.
-: If it were more limited, would that have been okay?
-: No, and it wouldn't have been okay
because the situation here does not fall within
the rule 35 requirements for a deposition.
-: I'm just cur-
I am curious though.
So if the notes are sh-
if the summary is shotty,
say she just prepared two sentence summary.
I took notes.
So you wouldn't be able to then
flesh it out 'cause she's trying to use the...
I understand she's trying to use the deposition
more broadly than that,
but if she were using it just to recreate the notes,
would that still be a problem?
-: I think there's a few issues there.
First, the summary isn't the only piece of information
from Ms. Sayward.
There were two emails provided
that were contemporaneously created during the treatment.
So she has both two emails,
which include information about the treatment
and the summary.
And as you all discussed,
she has the ability to call her on the stand
and ask these questions.
It doesn't have, you know,
do asking these questions prior to trial
is in fact a deposition as a discovery tool, which is not.
-: But counsel, I guess,
in both your brief in the Commonwealth's brief,
I don't know that I fully appreciate,
or that I get a sense that you appreciate the optics here.
You have someone who after an initial interview
makes no allegation against the defendant,
has these treatment sessions
and then there's an allegation.
And what I find troubling is,
we know that the complainant
met with the clinician,
they asked mass health for the records,
mass health doesn't give any records.
So we don't know how many treatment sessions they had.
And let's just presume for the sake of argument
that it's 50 minutes.
So if there is some indication that was at least six,
so there's about six hours worth of session time,
and they've a page and a half summary,
and two emails somehow balanced that scale?
-: Well, I understand the concern
for the missing records as the court has found,
the lower court has found
the records were inadvertently destroyed.
There was no malice here.
-: I'm not saying that there was,
but the court has said
because irrespective of how
and Judge Fishman credited that it was inadvertent,
but in irrespective of all of that,
there's missing information that arguably
the defendant's entitled to, and now doesn't have,
to what would be really important to be able to figure out
what to do in terms of how they address
this particular issue with the subsequent allegation, right?
-: Yes, and in this instance,
what the court determined was an appropriate remedy
was the summary and providing the emails
that were outside of the range of the original Lampron-Dwyer
allowed summons,
whether the summary was exactly
what the defendant was looking for.
I mean, often the records aren't exactly
what the defendant is
looking for either. -: Well, if you're focusing
on Judge Fishman, I'm focusing on Judge Gilday.
And Judge Gilday said deposition.
-: Yes, but in doing that Judge Gilday failed
to adequately review the rule 35 requirements
for ordering a deposition.
And in ordering a deposition in this case
would be going entirely outside the bounds
of Lampron-Dwyer,
and now Lampron-Dwyer is in solely for the purpose
of producing documents
and to take a rule 17, request for documents,
and turn it into a rule 35 deposition
is meshing together two different rules
that have entirely different requirements and purposes from.
-: Didn't the judge have the authority under
the judge's general authority
to remedy discovery violations?
I understand that rule 35 is perpetuate testimony.
If the witness is available,
you don't get the depositions that's clear,
but to Justice George's point,
doesn't the trial judges' general authority
to remedy violations,
given the right to kinda craft this
to allow for this?
-: Well, the judge does have general authority
to craft discovery remedies,
rule 35 actually doesn't provide the judge
with the same level of discretion
as other discovery rules do.
Rule 35 is a more limited requirement
and it requires the judge to make certain considerations
for exceptional circumstances.
It's not a broad discovery rule
in a similar way that rule 17
would be in allows for crafting a remedy.
-: Why isn't it an exceptional circumstance
that these documents existed at some point
and while inadvertent were destroyed to the detriment
of the defendant and so the best way
having seen the summary and the two emails,
the best way to solve this
unfortunate destruction is a deposition of the clinician?
-: And could I ask something? -: Why is that
not an abusive discretion?
Why is that an abusive discretion?
I mean, it seems to me that whether or not
we would think it was appropriate,
if we were the trial judge,
why does it make it an abusive discretion
for this judge to order this remedy
in this particular extraordinary circumstance?
-: And may I add to Justice Wendlandt's question
that you also have to overlay here
that this record holder was required to keep it,
this isn't just something that just kind of disappeared.
She had an affirmative duty to keep these records
and did not.
So why isn't it going back to Justice Wendlandt's question,
why aren't these exceptional circumstances?
-: Under rule 35 exceptional circumstances
is for not for creating evidence or creating testimony
prior to trial. -: But this evidence existed,
it's not a new creation.
It's a recreation of something that was inadvertently,
but unfortunately destroyed that the defendant says
is necessary for his defense.
-: But ultimately, a deposition wouldn't,
it wouldn't make the defendant whole,
it wouldn't create these records.
The records are gone.
-: Is that the standard for abuse of discretion,
whether or not the defendant is made whole?
-: No, it is not the standard for abusive discretion,
but here, it is an abusive discretion to apply rule 35,
which is not a discovery tool,
which is not for the purposes of obtaining evidence
prior to trial, rule 35 is for the purpose
of getting testimony that is material to the case
that otherwise you can't get at trial.
And here, there is nothing to say that the witness
that Ms. Sayward would not be able to go to trial
and provide that testimony there.
-: Well, there's a suggestion,
if you take Lampron-Dwyer
and records needed to be produced
because they were destroyed
and you take rule 35,
which is an extraordinary circumstances to preserve
some testimony that you might need for trial.
And the trial's going to be, I don't know, a year from now,
18 months from now,
we've already got issues with the social worker.
Can't the judge take into account that memories fade,
and it's better to get what those records were
now as opposed to a year and a half from now?
-: Well, first, every other witness at the trial
is going to be waiting and having their memory fade
in the same way as in theory,
Ms. Sayward, the social worker.
Well, I mean, there aren't depositions
of every other witness in this case,
to preserve their memory.
But additionally, the...
-: Not the memory of what they observed,
it's the memory of what was in a document.
-: And we've done that already with the summary.
That was the preservation of her memory by crafting
that solution by providing the summary to the defendant.
-: Okay.
If there are no further questions,
we'll move on to Attorney Palumbo.
-: Good morning, your honors,
Karen Palumbo for Commonwealth.
First, I'd like to touch upon Rachel's, I'm sorry,
Attorney Self's statement regarding the SANE interview,
which I'm sure all familiar with.
First, this is a six year old sexual assault victim.
In the first SANE interview,
I would suggest does not have no disclosures whatsoever.
He's speaking to his parents initially
and then his first interview with a person he doesn't know.
He says he doesn't like technology, I don't like that.
You wanna know why?
And he says, everybody goes on computers,
but there's not enough computers for me.
And I have to go in another room
and the defendant makes me play games.
And they're really hard,
and it's not making like technology.
The victim, he said,
he always went into another room
because there were no computers for him.
Usually the door could be open or shut,
and sometimes the lights were on and off.
He also said, one time when the lights were off,
someone walking over,
another student accidentally touched this.
It was his private parts and he said,
it's what you go to the bathroom with.
So he continued to say kind of general statements.
And when the interviewer pushed him a little bit,
regarding what he discussed with his parents, he said,
this is the six year old victim.
-: Counsel, can I ask you a question?
-: Yes.
-: Is the summary of an abusive discretion,
the creation of the summary?
-: I believe it is,
but the summary's already been created,
defense counsel has already had access to that summary.
And Justice Cypher found
that it was not an abusive discretion
although, she herself -: And you're not
appealing that?
Karen: We're not appealing that part.
-: Okay, so the summary is appropriate,
even though you disagree.
-: Yes, we disagree. -: So given that
the summary is in, why is it, you know,
what's the difference between the summary and the deposition
that makes it such an abusive discretion?
-: Well, first and foremost,
the purpose of the deposition for the defendant
is not to preserve testimony.
It's not even to recreate testimony.
Attorney Self says the purpose is to investigate
the credibility of victim's allegations
and the propriety of the therapist treatments.
-: So I go back to Justice Kafker's question is,
is a different scope of deposition
appropriate? -: Permissible?
-: No, I don't believe so.
For depositions, it is a narrowly construed rule
and it does, and this of course, aware it applies only
in exceptional circumstances.
Usually the witness is not gonna be available
to testify at trial.
The testimony that the defendant may not be able to get
would be an injustice and that other factor
is whether it's unjust to the non-moving party.
And I would suggest that here,
where the defendant would have unfettered access
to the victim's privileged information
that is definitely unjust to the victim in this case.
Also, as Justice Cypher
pointed out. -: But I'm confused.
If Lampron-Dwyer is satisfied,
so that he does get access to the notes,
all we're doing is putting him back
to where he would be before,
which is having access to the notes?
Karen: During this deposition, well, the notes.
-: I understand the deposition may be hard to reign in
and may be impossible to reign in.
And that may be why no one's ever done one, but.
-: I would also suggest as Justice Cypher said,
it eviscerates the Dwyer-Lampron protocol.
Under Dwyer,
if records are disclosed to the defendants,
they're held in camera, in court
and the defendant is the only one who's allowed to see them,
there are special protections in place
to protect victims in cases like this,
and eliminating those protection
would risk victims being able to speak honestly,
during treatment
because all of their information
would be unfettered depositions in every case.
I think this is important in this case.
-: Well, that's overstating it, isn't it?
Because again, it's going back down to the trial judges
that had an opportunity to look at this.
This isn't unfettered.
There is a specific instance where
these records were inadvertently were destroyed.
They were discoverable that judge ordered
the records produced under rule 17.
So this isn't a situation where folks can just walk in
and ask for depositions in every case,
there's specifics to this case as to why
the judge has said, not only is he entitled to it,
but now because they don't exist
were gonna order as a remedy
that this deposition happened.
-: Well, I would suggest in this case,
this was, and contrary to what counsel said,
it's not unethical or legal.
She did have an obligation to retain these files,
but there was a show cause hearing in the trial court
and they found that the records
were inadvertently destroyed.
There was no culpability on anyone's part in this instance.
-: Well, that's not true
because you, the Commonwealth also said
that she potentially has criminal exposure, right?
Didn't you say that in your brief?
-: That is in the Commonwealth brief, yes.
-: So that's an overstate, okay?
All right, but so let's start there.
So we have something where we have a clinician,
who's got a statutory responsibility
or regulatory responsibility to keep these records.
They're not there.
And I guess I'm just still struggling to find
where it is that we should just say to the defendant,
you were owed these records,
a judge looked at these things and said
that under these circumstances, the extraordinary relief
of a deposition is warranted.
That's somehow there's an abuse there.
If you could focus on that for me,
because again, it's not substitute a judgment,
it isn't what you or I would do.
But in this case, what the judge ordered,
tell me why that is an abusive discretion?
-: It's an abusive discretion
because the defendant has material.
She has the letter and the email.
She also has the summary.
And most importantly, she has the two SANE interviews.
And I wanted to point out to the court
that there's clearly some disclosure
in the first SANE interview, as I said,
when the victim was being pushed as to what she said to,
he said to his parents, well, okay, fine,
I'll tell you this.
It's what, when the defendant,
when I hurt my leg, he knew I did.
And he said, take your pants off,
and that's why I didn't wanna go to school.
So in this first SANE interview,
he's saying there are not enough computers for us.
So we go into a separate room with the defendant
and he tells me to take my pants off.
I disagree with counsel's representation
that that is not a disclosure.
I do agree that the second SANE interview
is much more detailed and specific.
And defense counsel is free to investigate that
and cross examine the victim and the therapist at trial,
and as Justice Cypher found
that is his remedy is a thorough cross examination.
-: Well, can he...
The issue is preparing adequately for trial
because it's difficult to ask these type of questions,
blind in front of the jury.
But if we just take a step back for a moment,
what happened was under Lampron-Dwyer
that there's a presumptive privilege, right?
-: Yes. -: So the records
are called in, but they don't come in.
-: Right. -: So what you're saying is
this is not the functional equivalent of having a ruling
about what would've happened at trial,
but that the defense attorney subject to a protective order
could have viewed the records.
-: Correct. -: Okay.
So why isn't a reasonable answer to this rather than
have the defendant have to blindly cross examine
to have some sort of voir dire
at trial with the judge on the bench,
as opposed to a deposition to get right at the issues,
addressing the presumptively privileged records?
Karen: At this point,
and even when the records have been turned over to the court
and defendant can view them,
the privilege has not been waived.
The therapist in this case will be subject to a deposition,
which is only to preserve evidence
at which she cannot invoke
the patient-therapist's privilege.
-: Oh, I understand that.
I appreciate that point.
I'm saying, if there's a concern,
a legitimate concern, and I think there is,
that the defendant not have to cross examine blind here.
Why couldn't substitute
the availability of those objections be
of voir dire so that there can be adequate preparation
for cross examination?
-: If defendant isn't requesting voir dire...
-: What do you think of that as a remedy?
-: It may be an option.
It's certainly may be better than this option,
which I believe is not permitted by the rules.
And isn't abusive of the judges' discretion.
-: You're not calling this social worker as a witness, right?
-: The Commonwealth will be calling her, yes.
-: Will? -: I believe so.
I'm not the trial attorney,
but. -: Okay.
For what purpose?
-: To testify as to her treatment of the victim.
-: As the statements, or just general treatment?
-: Like probably just general information.
We aren't privy to the statements
or what went on during the therapy sessions.
We're not privy to that.
-: Did you get the summary?
-: No, we have not viewed the summary.
We're not entitled to view the summary.
It's sealed, it's for the court and defense counsel only.
-: Okay.
-: If there are no further questions,
I'd ask that the court affirm the single justices order,
vacating the deposition.
-: Thank you. -: Thank you.