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13-P-850                                              Appeals Court

                   COMMONWEALTH   vs.   DEREK HUNT.



                             No. 13-P-850.

            Bristol.      May 7, 2014. - October 6, 2014.

               Present:   Cypher, Kafker, & Hanlon, JJ.


Contempt.    Attorney at Law, Contempt. Practice, Civil,
            Contempt, Attorney's fees, Moot case, Frivolous
            action. Practice, Criminal, Subpoena, Affidavit,
            Discovery.     Rules of Criminal Procedure. Evidence,
            Privileged communication. Privileged Communication.
            Moot Question.



     Indictments found and returned in the Superior Court
Department on March 30, 2009.

     Entry of a finding of contempt was ordered by Richard T.
Moses, J.


     Christopher C. Trundy (Donald A. Brisson with him) for
Donald A. Brisson.
     Matthew A. Kamholtz (Aviva E. Jeruchim with him) for Derek
Hunt.


     HANLON, J.    Donald Brisson appeals from an order of the

Superior Court finding him in civil contempt for failing to
                                                                      2


produce certain documents pursuant to Mass.R.Crim.P. 17(a)(2),

378 Mass. 885 (1979).    Brisson is an attorney who was

representing four potential witnesses who were cooperating with

the Commonwealth in the pending murder charges against the

defendant, Derek Hunt.    Counsel for the defendant asked for

permission to subpoena the documents and the judge ordered them

produced; when Brisson refused to turn them over, he was found

in contempt.   We vacate the order of contempt.

     Background.   The significant facts are not in dispute.     On

March 30, 2009, the defendant was indicted on charges of murder

and carrying a firearm without a license.    Approximately two

years later, in April of 2011, at the request of the defendant,

Brisson was appointed to represent four potential witnesses, on

the ground that their testimony could violate their rights under

the Fifth Amendment to the United States Constitution.    The

judge described the witnesses' testimony as "critical to the

Commonwealth's case."    Shortly before the scheduled trial, the

"client-witnesses disclosed to the District Attorney's Office

alleged improper conduct of defense counsel and/or her

investigator, which sought to influence their testimony at

trial."   Thereafter, the four witnesses appeared before a

separately convened grand jury investigating the claims against

defense counsel and her investigator and, during that process,

the four were given immunity for their testimony.
                                                                    3


     In the meantime, apparently believing that there were

credibility issues in the witnesses' proposed trial testimony,

defense counsel filed a motion "to authorize [her] to subpoena

to the clerk's office of Fall River Superior Court any and all

records, notes, documents, and recordings in the possession of

Attorney Donald Brisson relative to his representation" of the

four witnesses. 1   Brisson opposed the motion through counsel,

claiming the attorney-client and work product privileges;

Brisson also argued that the motion failed to meet the minimum

requirements required for production of documents by a third

party.   On January 20, 2012, defense counsel filed a "motion for

summons for non-privileged records of Attorney Donald Brisson,"

pursuant to rule 17(a)(2), along with her affidavit and a

supporting memorandum of law. 2   Brisson filed a supplemental

opposition.



     1
       The motion provided "[a]s reasons therefor" that the
materials "contain discoverable material with respect to the
case herein."
     2
       Other than her name and her representation that she was an
attorney in good standing, defense counsel included in her
affidavit only one statement of fact supporting her document
request: "4. After reviewing discovery regarding the
representation by Attorney Donald Brisson of [the four
witnesses] with respect to their communications with agents of
the Commonwealth of Massachusetts, I have reason to believe that
additional non-privileged discovery exists that will provide the
defense with relevant and material information that will be used
at trial." The memorandum of law contained more specific
allegations, but no information supporting those allegations
                                                                      4


     On January 23, 2012, after a hearing, the judge ordered

Brisson to produce, on or before January 26, 2012, a list of

materials which the judge had reformulated from defense

counsel's request into five specific categories. 3    Brisson filed

an emergency petition in the Supreme Judicial Court pursuant to

G. L. c. 211, § 3, seeking review of the order.      A single

justice denied the petition, finding that "[t]he material sought

is non-privileged," Brisson "ha[d] not been held in contempt,

and his petition [was] premature."

     On January 30, 2012, at the scheduled pretrial hearing,

Brisson's attorney argued that, because defense counsel had not

reduced the judge's order to a summons and served Brisson, he


other than the preface, "[i]t is believed." The memorandum was
not signed under the pains and penalties of perjury.
     3
       The judge found the following listed materials to be
"relevant, not reasonably obtainable in advance of trial, . . .
reasonably necessary for trial preparation, and . . . sought in
good faith: (1) Any and all written communications between
Brisson and any representative of the Commonwealth relating to
the testimony of the client-witnesses; (2) Any notes or other
writings memorializing any such communications; (3) Any
correspondence and/or memoranda relating to the scheduling of
any meeting(s) between Brisson and any representative of the
Commonwealth relating to the testimony of the client-witnesses;
(4) Any and all correspondence between Brisson and any
representative of the Commonwealth relating to any past and or
proffered testimony of the client-witnesses, including, without
limitation, correspondence relating to any promises, rewards or
inducements; [and] (5) Any notes or memoranda of any non-
privileged statements of the client-witnesses made in the
presence of any representative of the Commonwealth (excluding
notes taken by Brisson during any tape recorded interview of the
client-witnesses which were provided by the District Attorney's
Office to defense counsel)."
                                                                     5


(Brisson) was unable to object to the request through the proper

procedural mechanism of a motion to quash.    The judge disagreed,

stating that because Brisson had been afforded "ample due

process," the issuance of a subpoena would "add[] little, if

anything" to the January 23 order because a hearing on "a motion

to quash would raise the very same issues that were already

raised and argued before [him] and taken to the [Supreme

Judicial Court]."    Brisson declined to produce the materials; he

was held in civil contempt, with a penalty of $500 per day until

he complied with the order, the penalty to begin the following

day.    Brisson timely appealed.

       Brisson also immediately filed a petition in this court

seeking a temporary stay of the contempt order pursuant to

Mass.R.A.P. 6(a), as appearing in 454 Mass. 1601 (2009).    On

February 2, 2012, after hearing, a single justice determined,

among other things, (1) that defense counsel's affidavit filed

in support of her request for a summons upon Brisson was

insufficient under Mass.R.Crim.P. 13(a)(2), as appearing in 442

Mass. 1516 (2004), and (2) that the contempt order failed to

comply with the "specific protocols set forth in Commonwealth v.

Dwyer, 448 Mass. 122, 145-150 (2006)."    The motion for a stay

was allowed without prejudice.

       On February 6, 2012, the defendant served Brisson with a

summons requiring him to appear at the defendant's trial
                                                                         6


beginning that day, and requiring him (Brisson) to bring the

materials described in an attached list. 4      Brisson filed a motion

to quash the subpoena and it was denied.        The defendant took no

further action to obtain the materials; on February 13, 2012, he

was acquitted of both charges.

       Discussion.    A.   Contempt order.   Brisson first argues that

the materials sought by the defendant were protected by

safeguards that require a certain protocol be followed prior to

obtaining access, and that the defendant did not follow the

protocol.       Brisson claims that, because a summons for the

materials never was issued before the contempt order was issued,

he was deprived of the proper mechanism to object to the

document request, rendering the contempt order unlawful.

       When a defendant seeks pretrial inspection of presumptively

privileged records of a third party, that defendant must adhere

to the protocols grounded in rule 17.        See Dwyer, 448 Mass. at

139.       See also Mass.R.Crim.P. 17(a)(2); Mass. G. Evid. § 1108

(2014).       A party in a criminal case may file a motion to compel

production of documents from the third party so long as the

materials "may contain relevant information that has evidentiary

value to the defense," and "the motion [is] supported by an

affidavit that shows that 'the documentary evidence sought has a


       4
       The list of materials attached to the summons was
identical to the list in the January 23, 2012, order.
                                                                   7


"rational tendency to prove [or disprove] an issue in the

case."'"   Commonwealth v. Caceres, 63 Mass. App. Ct. 747, 750

(2005), quoting from Commonwealth v. Lampron, 441 Mass. 265,

269-270 (2004).   The accompanying affidavit must meet the

requirements of rule 13(a)(2), and Lampron, supra at 270.

Dwyer, supra at 147 (Appendix 1).

     Prior to issuing a summons for the materials, a judge must

determine whether the moving party has made a showing sufficient

to satisfy the four-requirement standard outlined in Lampron.

Id. at 141-142.   Specifically, the moving party must establish

good cause for the production of third-party documents, which is

"satisfied by a showing '(1) that the documents are evidentiary

and relevant; (2) that they are not otherwise procurable

reasonably in advance of trial by exercise of due diligence; (3)

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 (4) that the application is made in good faith

and is not intended as a general "fishing expedition."'"

Lampron, supra at 269, quoting from United States v. Nixon, 418

U.S. 683, 699-700 (1974).   "[R]ule 17(a)(2) must be satisfied

before any documents of any kind may be summonsed from any third

party prior to trial."   Dwyer, supra at 140.
                                                                      8


     In this case, defense counsel's affidavit accompanying the

rule 17 motion is not specific and contains conclusory

statements that fall short of meeting the required showing.

Contrast Caceres, supra at 750-751.     Compare Martin v.

Commonwealth, 451 Mass. 113, 122 (2008), where the defendant

satisfied each of the four requirements under Lampron by

providing a lengthy and detailed affidavit establishing "a

specific basis for the relevancy of the requested documents, and

identif[ying] the source . . . and reliability of the hearsay."

In this case, the judge's January 23, 2012, order to provide the

materials was issued in error and the defendant does not now

contend otherwise. 5

     B.   Mootness.    Defense counsel argues, rather, that

Brisson's appeal is moot and frivolous because the contempt

order against him was stayed and never was reinstated, and no

sanction ever was imposed upon him.     For support, she cites

Commonwealth v. Rape Crisis Servs. of Greater Lowell, Inc., 416

Mass. 190, 193 (1993), where the court stated that "[u]nlike its

criminal counterpart, civil contempt is not punitive but

'intended to achieve compliance with the court's orders for the

benefit of the complainant.'     Furtado v. Furtado, 380 Mass. 137,


     5
       In light of our conclusion, we need not address the
question whether the entry of an order, rather than the issuance
of a summons, is sufficient to compel a record holder to produce
the requested materials.
                                                                      9


141 (1980).    Vindication may be proper where a conviction of

contempt results in the imposition of a punitive sentence and

incarceration, but such is not the case here, where the finding

of civil contempt was meant simply to coerce.    Judicial economy

and the lack of an adversary quality to this proceeding seal its

fate."    See Commonwealth v. Anastos, 438 Mass. 846, 849-850

(2003).    In both Rape Crisis Servs. of Greater Lowell, Inc., and

Anastos, however, the judgment of contempt had been vacated

prior to the appellate decision and, therefore, the appeal

indeed had been moot.    Here, the contempt order remains

outstanding.    In addition, as with an abuse prevention order

under G. L. c. 209A, or a harassment order under G. L. c. 258E,

the effect of maintaining the contempt order against Brisson may

have continuing consequences, even though the order was intended

only to be coercive.    See, e.g., Seney v. Morhy, 467 Mass. 58,

62 (2014); Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638

(1998); Smith v. Jones, 67 Mass. App. Ct. 129, 133 (2006).      For

that reason, we are not persuaded that this appeal is moot or

frivolous.

     C.   Attorney's fees.   Brisson also argues that defense

counsel's actions amounted to misconduct and that, as a result,

she should be ordered to pay the expenses and attorney's fees

incurred in his effort to vacate the contempt order as well as

for his own time expended in that effort.    We disagree.
                                                                  10


Although the method defense counsel used in her attempt to

obtain the materials was defective, we accept the judge's

finding that the request was made in good faith.   See

Commonwealth v. Odgren, 455 Mass. 171, 188 (2009).   In addition,

this issue was raised for the first time on appeal and,

therefore, is waived.   See Martins v. University of Mass. Med.

Sch., 75 Mass. App. Ct. 623, 634 n.17 (2009).

                                    Order of contempt vacated.

LSM
