In the Matter of a Motion to Compel ( 2023 )

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SJC-13336
IN THE MATTER OF A MOTION TO COMPEL.
Worcester. May 3, 2023. - September 18, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Uniform Act to Secure Attendance of Witnesses from Without a
State in Criminal Proceedings. Privileged Communication.
Practice, Criminal, Attendance of witnesses. Witness,
Compelling giving of evidence, Privilege. Evidence,
Privileged record. Statute, Construction. Public Policy.
Motion to compel attendance filed in the Superior Court
Department on January 12, 2022.
The motion was heard by J. Gavin Reardon, Jr., J.; a motion
for reconsideration was also heard by him; and the case was
reported by him to the Appeals Court.
The Supreme Judicial Court granted an application for
direct appellate review.
Anthony J. Cichello (Allison Lennon also present) for the
respondent.
Anthony Mirenda, Laura D. Gradel, & Adam Aguirre, for
Victim Rights Law Center & others, amici curiae, submitted a
brief.
Andrea C. Kramer, Jamie Ann Sabino, Nicole R.G. Paquin,
Samantha Jandl, & Tara Thigpen, for Women's Bar Association of
Massachusetts & another, amici curiae, submitted a brief.
2
GEORGES, J. This case concerns an order issued by a
Superior Court judge compelling the production of sexual assault
counselling records pursuant to a certificate issued by a
magistrate of the Rhode Island Superior Court (Rhode Island
court or Rhode Island magistrate) under the Uniform Law to
Secure the Attendance of Witnesses from Without a State in
Criminal Proceedings, G. L. c. 233, §§ 13A-13D (Uniform Act).
The order is challenged by the record holder, the keeper of
records at a rape crisis center (center). The essential
question is whether the Massachusetts judge erred in declining
to analyze the sexual assault counsellor's privilege, provided
in G. L. c. 233, § 20J, when conducting his analysis under the
Uniform Act.1 Relying on this court's decision in Matter of a
1 In relevant part, the Uniform Act provides that when
presented with a complying certificate from an out-of-State
court, a Superior Court judge shall compel the designated
witness to attend the out-of-State proceeding. See G. L.
c. 233, § 13A. To comply with the Uniform Act, the certificate
must certify that the witness is material and that his or her
presence is required. See id.; Matter of a R.I. Grand Jury
Subpoena, 414 Mass. 104, 112 (1993). The Massachusetts judge
then determines (a) whether "the witness is material and
necessary," and (b) whether it will "cause undue hardship" to
compel the witness to attend and testify. G. L. c. 233, § 13A.
See Matter of a R.I. Grand Jury Subpoena, supra.In the absence of a victim's "prior written consent," G. L.
c. 233, § 20J, prevents a "sexual assault counsellor" from
disclosing "information transmitted in confidence by and between
a victim of sexual assault and a sexual assault counsellor," and
further, it provides that such information "shall not be subject
3
R.I. Grand Jury Subpoena, 414 Mass. 104, 109 (1993) (R.I. Grand
Jury Subpoena), the Massachusetts judge concluded that the
privilege claim must instead be raised in Rhode Island.
To best harmonize the Uniform Act with G. L. c. 233, § 20J,
we deem it necessary for either the requesting State or
Massachusetts to adjudicate a request for Massachusetts sexual
assault counselling records in accordance with the Lampron-Dwyer
protocol.2 See Commonwealth v. Dwyer, 448 Mass. 122, 139-147
(2006); id. at 147-150 (Appendix); Commonwealth v. Lampron, 441
Mass. 265, 269-270 (2004). The Superior Court judge reached
this same conclusion in his initial order, and but for his
reliance on the general rule articulated in R.I. Grand Jury
Subpoena, 414 Mass. at 109, he would have correctly applied the
Lampron-Dwyer protocol in ultimately deciding the issue. On his
report of this issue of first impression, we clarify the
applicable standard.
Specifically, we hold that this Commonwealth's strong and
clear public policy in favor of protecting victims of sexual
assault compels an exception to the otherwise applicable general
to discovery and shall be inadmissible in any criminal or civil
proceeding."
2 We note that certain amendments to the Uniform Act and
G. L. c. 233, § 20J, took effect during the pendency of this
case. See St. 2022, c. 127, § 36; St. 2022, c. 175, §§ 48A, 55.
Those changes are not at issue here.
4
rule of R.I. Grand Jury Subpoena, 414 Mass. at 109, that under
the Uniform Act, privilege claims should be litigated in the
requesting jurisdiction. This exception is specific to records
or testimony presumptively privileged by § 20J, and it applies
only where an objecting party establishes a substantial
likelihood that the protections of the § 20J privilege, as
expressed in the Lampron-Dwyer protocol, will be abrogated in
the requesting State. If such a substantial likelihood exists,
then a Massachusetts judge must ensure that records or testimony
presumptively privileged by § 20J will receive the protections
of the Lampron-Dwyer protocol before authorizing a subpoena
under the Uniform Act. Applying this standard here, we vacate
the order of the Superior Court judge.3,4
3 We are informed by the center in a postargument letter
that the underlying Rhode Island criminal case was dismissed
during the pendency of this appeal. The center concedes that
this development could be grounds to deem this matter moot.
Nevertheless, "[i]t is within the discretion of this court to
review a case regardless of its mootness." Commonwealth v.
McCulloch, 450 Mass. 483, 486 (2008). While it would appear
that this matter is moot, we exercise that discretion to decide
the issue presented by the judge's report because it is an issue
of significant public importance about which there is some
uncertainty. See id.; Brown v. Guerrier, 390 Mass. 631, 633
(1983) ("The fact that a judge has reported the case is entitled
to weight in deciding whether to exercise our discretion in
favor of answering substantive questions").
4 We acknowledge the amicus brief submitted by the Victim
Rights Law Center, Jane Doe, Inc., Boston Area Rape Crisis
Center, Center for Hope and Healing Inc., New Hope, Inc.,
Pathways for Change, Inc., Elizabeth Freeman Center, Inc.,
Independence House, Inc., and National Women's Law Center, as
5
Background. The petitioner5 was charged by the State of
Rhode Island with child molestation.6 The center has represented
-- and the Superior Court judge assumed in reaching his
decision -- that the alleged victim, a minor, was receiving
counselling at the center, and that the alleged victim's
counsellor there was a sexual assault counsellor. The center
states that this counselling is ongoing.
A Rhode Island magistrate issued a certificate pursuant to
the Uniform Act seeking to obtain from the center the alleged
victim's medical records from a specific date to the present.
The certificate described the magistrate's conclusions that the
keeper of the records for the center was "a material witness" in
the Rhode Island criminal case and that "the documents that []he
will bring with h[im] are relevant to the trial . . . and
necessary for the presentation of a defense." In particular,
the Rhode Island magistrate concluded that "upon information and
well as the amicus brief submitted by the Women's Bar
Association of Massachusetts and the Massachusetts Law Reform
Institute.
5 We refer to the party who sought the records as the
petitioner, as that was the party's designation in the Superior
Court.
6 Specifically, he was charged with one count of "first
degree child molestation sexual assault" pursuant to R.I. Gen.
Laws §§ 11-37-8.1 and 11-37-8.2, as well as three counts of
"second degree child molestation sexual assault" pursuant to
R.I. Gen. Laws §§ 11-37-8.3 and 11-37-8.4.
6
belief, said witness would give evidence and testimony relating
to an alibi," and further, that "the witness can provide
evidence and testimony that would be material and relevant to
the defenses of, inter alia, the alibi generally as well as
impeachment and exculpatory evidence."
One month later, the petitioner filed the certificate along
with a motion to compel in the Superior Court. A hearing was
then held at which the center appeared and opposed the motion to
compel. After the hearing, the center filed a written
opposition and the petitioner filed a supplemental memorandum in
support of his motion to compel. The Superior Court judge
issued an order denying the motion to compel without prejudice.
He noted the center's objections based on G. L. c. 233, § 20J,
and cited a lack of information as to whether Rhode Island would
afford protections similar to those provided in Massachusetts.
On that basis, he concluded that requiring the appearance of the
record-keeper would be an undue hardship. The judge suggested
that his concerns would be satisfied by either a hearing
pursuant to the Lampron-Dwyer protocol in the Superior Court or
a showing that the equivalent was held in Rhode Island.
One month later, a second magistrate of the Rhode Island
court issued an order that the records at issue "shall be viewed
in camera by the Judge/Magistrate before any documents are
turned over to counsel." The petitioner presented this order to
7
the Superior Court in a motion for reconsideration, urging that
it answered the Superior Court judge's concerns. The center
opposed the motion for reconsideration, and a hearing was held,
at which the center argued that the Lampron-Dwyer protocol had
not been met, either in Rhode Island or before the Superior
Court. The center emphasized, as it had in its prior
opposition, that it received no notice of the Rhode Island
proceedings. The Superior Court judge noted his concern about
the lack of notice to the center and expressed reservations
about whether the requirements of Lampron-Dwyer had been met.
Relying on this court's decision in R.I. Grand Jury
Subpoena, 414 Mass. at 109, however, the Superior Court judge
issued an order in which he concluded that the privilege issue
must be litigated in the requesting State, Rhode Island.
Consequently, he "limit[ed] [his] analysis to the considerations
set forth under" the Uniform Act. Without analyzing the
privilege for sexual assault counselling records under § 20J,
the Superior Court judge concluded that the showings of
materiality and necessity as required by the Uniform Act were
established in the certificate and that compelling attendance
did not give rise to undue hardship. See R.I. Grand Jury
Subpoena, supra at 108 n.4. He allowed the motion to compel but
stayed his order for fourteen days. The order subsequently was
stayed further on the center's motion.
8
The Superior Court judge again further stayed his order and
all proceedings, and he reported his order to the Appeals Court
pursuant to G. L. c. 231, § 111, and Mass. R. Civ. P. 64 (a), as
amended, 423 Mass. 1403 (1996), or, in the alternative, Mass. R.
Crim. P. 34, as amended, 442 Mass. 1501 (2004). After the
appeal had been entered in the Appeals Court, this court granted
the center's application for direct appellate review.7
Discussion. 1. Standard of review. Where a Superior
Court judge reports an interlocutory order for determination by
an appellate court, "the basic issue . . . is the correctness of
his [or her] finding or order" (citation omitted). Graycor
Constr. Co. v. Pacific Theatres Exhibition Corp., 490 Mass. 636,
640 (2022). The crux of the instant dispute is a question of
law, that is, whether and to what extent a Massachusetts court
must consider G. L. c. 233, § 20J, in analyzing a request made
under the Uniform Act for sexual assault counselling evidence
located in Massachusetts. We review de novo such questions.
See Emma v. Massachusetts Parole Bd., 488 Mass. 449, 453 (2021).
2. The Uniform Act. We begin with the overarching
framework of the Uniform Act, which applies to requests for in-
person testimony as well as document requests. See R.I. Grand
Jury Subpoena, 414 Mass. at 112. In relevant part, the Uniform
7 The petitioner did not file a brief or appear for oral
argument before this court.
9
Act requires that when presented with a complying certificate
from an out-of-State court, a justice of the Superior Court in
Massachusetts shall compel the designated witness to attend the
out-of-State proceeding. See G. L. c. 233, § 13A. To comply
with the Uniform Act, the certificate must, inter alia, certify
that the witness is material and that his or her presence is
required. See id.; R.I. Grand Jury Subpoena, supra. In
Massachusetts, the Superior Court judge receiving such a
certificate is directed to hold a hearing to "determine[]"
(a) whether "the witness is material and necessary," and
(b) whether it will "cause undue hardship" to compel the witness
to testify. G. L. c. 233, § 13A. See R.I. Grand Jury Subpoena,
supra.
3. G. L. c. 233, § 20J. Massachusetts State law
privileges "information transmitted in confidence by and between
a victim of sexual assault and a sexual assault counsellor."8
G. L. c. 233, § 20J. It provides in relevant part that "[a]
sexual assault counsellor shall not disclose such confidential
communication, without the prior written consent of the victim,"
and further, that "[s]uch confidential communications shall not
be subject to discovery and shall be inadmissible in any
8 General Laws c. 233, § 20J, further defines the terms
"victim" and "sexual assault counsellor." The center has
represented that those definitions are met in this case, and the
petitioner did not dispute that before the Superior Court.
10
criminal or civil proceeding without the prior written consent
of the victim to whom the report, record, working paper or
memorandum relates."9 Id.
a. Interpretation. The text of § 20J shows the
Legislature's intention that the sexual assault counselling
privilege have "the widest scope possible." Commonwealth v.
Neumyer, 432 Mass. 23, 33 (2000). See Commonwealth v. Two
Juveniles, 397 Mass. 261, 265-266 (1986). The "demonstrated
legislative concern for the inviolability of the privilege"
corresponds to the importance of the public policy purposes that
it serves. See Commonwealth v. Fuller, 423 Mass. 216, 225
(1996), overruled on other grounds by Dwyer, 448 Mass. at 139.
We have explained this "policy of the Commonwealth" in the
following terms: "Because victims of sexual crimes are likely
to suffer a depth and range of emotional and psychological
disturbance . . . not felt by the victims of most other crimes,
the public interest lies in assisting victims of sexual crimes
to recover from injuries" (quotation and citation omitted).
Commonwealth v. Stockhammer, 409 Mass. 867, 884 (1991). Cf.
G. L. c. 233, § 21B (rape shield statute); St. 1977, c. 110,
preamble (purpose of rape shield statute is "to protect . . .
9 The center represented to the Superior Court judge that
the alleged victim objected to the request at issue.
11
victims of rape and certain other related crimes"); Commonwealth
v. Harris, 443 Mass. 714, 723 (2005).
Section 20J advances this policy. It "reflects, among other
considerations, the personal and intimate nature that records of
sexual assault counselling will almost certainly possess."
Fuller, 423 Mass. at 221. And it permits a sexual assault
victim to have "confidence and trust in the counsellor who hears
[his or her] disclosures." Id. at 222 n.4. Without this, a
victim "may not feel able to make full disclosure" or "may forgo
altogether the benefits of counselling." Id. at 221. By
privileging these communications and related records, § 20J
addresses these concerns, promoting aid to sexual assault
victims and encouraging the reporting of sexual assault crimes,
which otherwise might go unreported. See id. at 221-222 & n.4.
b. Lampron-Dwyer protocol. "With the existence and
strength of the privilege established by the Legislature, the
only issue left for judges" is whether a defendant's
constitutional rights are implicated. Two Juveniles, 397 Mass.
at 266. The Lampron-Dwyer protocol protects the constitutional
rights of defendants while preserving the strength of statutory
privileges. It "represent[s] a careful balancing[,] . . .
establish[ing] not only that a statutory privilege sometimes
must yield to a defendant's need for information to mount a
defense and thus obtain a fair trial, but also that, in such
12
circumstances, the intrusion must be made with great care and
pursuant to exacting procedures." Matter of an Impounded Case,
491 Mass. 109, 118 (2022).
Under the protocol, sexual assault counselling records are
presumptively privileged. See Dwyer, 448 Mass. at 143 n.25,
148. To obtain access to such records,
"[t]he party moving to [summons] documents . . . must
establish good cause, 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."'"
Id. at 140-141, quoting Lampron, 441 Mass. at 269. The party
must first move the court, "describing, as precisely as
possible, the records sought," and detailing in an affidavit
"all facts relied upon in support of the motion." Dwyer, supra
at 147 (Appendix); Mass. R. Crim. P. 13 (a) (2), as appearing in
442 Mass. 1516 (2004). We emphasize that notice to the record
holder is an essential part of the Lampron-Dwyer protocol, and
this notice must be provided in advance of the Lampron hearing,
as the record holder is entitled to be heard before the issuance
of any summons not only on the question of privilege but also on
the question of relevance. See Dwyer, 448 Mass. at 145; id. at
148 (Appendix).
13
At the Lampron hearing, the judge "shall [then] hear from
all parties, the record holder, and the third-party subject, if
present." Id. at 148 (Appendix). After this hearing, the judge
will make oral or written findings as to whether the moving
party met its initial burden. See id. at 148 & n.3 (Appendix).
Moreover, the judge will make oral or written findings as to
whether the records at issue are presumptively privileged, i.e.,
"prepared in circumstances suggesting that some or all of the
records sought are likely protected by a statutory privilege."
See id. at 148 (Appendix).10
To the extent that the burden is met but "some or all of
the requested records are presumptively privileged," id. at 149(Appendix), the moving party will obtain access to those records
subject to a number of procedural safeguards. Any summons
issued pursuant to the Lampron-Dwyer protocol shall be limited
to the relevant portions of the records at issue. See Lampron,
441 Mass. at 269 n.6. And the presumptively privileged records
summonsed shall be kept by the clerk under seal. Dwyer, 448
Mass. at 146; id. at 149 (Appendix). Inspection is permitted
only by "counsel of record" for the moving party, who shall sign
a protective order "containing stringent nondisclosure
10It is understood that the judge will not have reviewed
the records in camera before making those findings. See Dwyer,
448 Mass. at 148 n.3 (Appendix).
14
provisions," the violation of which subjects the attorney to
disciplinary action.11 Id. at 146. "Among other things, the
protective order shall prohibit counsel from copying any record
or disclosing or disseminating the contents of any record to any
person, including the defendant." Id. Disclosure is "permitted
if, and only if, a judge subsequently allows a motion for a
specific, need-based written modification of the protective
order." Id. The judge may modify the protective order only
after a motion and hearing and must make oral or written
findings that the copying or disclosure of presumptively
privileged records is "necessary for the defendant to prepare
adequately for trial." Id. at 150 (Appendix). Even so, the
judge must "consider alternatives to full disclosure." Id.Where the records are disclosed pursuant to a court order
following this procedure, any recipient of the information must
sign a copy of the order, which "shall clearly state that a
violation of its terms shall be punishable as criminal
contempt." Id. Such records may be introduced at trial only
after a motion in limine, which may be allowed after a finding
that introduction is "necessary for the moving defendant to
obtain a fair trial" and only after consideration of
11Counsel can later bring a motion to challenge any such
privilege designation. See Dwyer, 448 Mass. at 149-150(Appendix).
15
alternatives. Id. All copies of the records must be returned
to the court upon resolution of the case. See id.
4. Application. In R.I. Grand Jury Subpoena, this court
explained that under the Uniform Act, privilege issues are "a
matter for the requesting jurisdiction to rule on and are not
appropriately addressed to the [S]tate court issuing the
subpoena." R.I. Grand Jury Subpoena, 414 Mass. at 109, quoting
Tracy v. Superior Court, 168 Ariz. 23, 43 (1991). Today, we
acknowledge the continuing validity of that general rule.
Nevertheless, we hold that this Commonwealth's strong and clear
public policy in favor of protecting victims of sexual assault
compels an exception to this rule. This exception is specific
to records or testimony presumptively privileged by G. L.
c. 233, § 20J. To receive the protection of the exception, the
burden is on an objecting party to establish a substantial
likelihood that the protections of the § 20J privilege, as
expressed in the Lampron-Dwyer protocol, will be abrogated in
the requesting State. In determining whether this burden has
been met, the Massachusetts judge may look to the law of the
requesting State and may rely on representations in the
certificate from the out-of-State court as to the means by which
it will protect the information.
If the objecting party's burden is met, the Massachusetts
judge must ensure that the records or testimony presumptively
16
privileged by § 20J will receive the protections of the Lampron-
Dwyer protocol before authorizing a subpoena for such
information under the Uniform Act. To accomplish this, a
Massachusetts judge may implement the full Lampron-Dwyer
protocol, or relying on the applicable law and representations
of the out-of-State court that certain parts of the Lampron-
Dwyer protocol will be fulfilled by the out-of-State
proceedings, the judge may implement the parts of the protocol
that will not otherwise be fulfilled. See R.I. Grand Jury
Subpoena, 414 Mass. at 114. Because notice to the record holder
is such an important part of the Lampron-Dwyer protocol,
however, we caution against reliance upon facts or conclusions
established without such notice.
In reaching this decision, we are persuaded by the analysis
of the New York Court of Appeals in Holmes v. Winter, 22 N.Y.3d
300, 316 (2013), cert. denied, 572 U.S. 1135 (2014). In that
case, the court reaffirmed the principle that privilege issues
should be litigated in the requesting State but nevertheless
created an exception to that rule based on the strong and clear
public policy of the State of New York, embodied in an absolute
privilege protecting a journalist's confidential sources. See
id. at 303, 313-320. The requesting State, Colorado, did not
provide the same protection, and so in light of the public
policy, the court found that a journalist was entitled to have
17
the privilege issue litigated in New York. See id. at 305, 314-
316. The Court of Appeals stressed, as we stress today, the
limited nature of the holding. See id. at 318, 319. The issue
we decide is "whether a [Massachusetts] court should issue a
subpoena compelling a [Massachusetts rape crisis center record
keeper] to appear as a witness in another [S]tate to give
testimony when such a result is inconsistent with the . . .
protection of [§ 20J]. Thus, the narrow exception we recognize
today . . . is not tantamount to giving a [Massachusetts] law
extraterritorial effect," and does not offend principles of
comity. Id. See People v. Marcy, 91 Mich. App. 399, 405, 407
(1979) (affirming denial of petition from out-of-State court
seeking testimony within Michigan's statutory polygrapher
privilege and attorney-client privilege).
The State of Rhode Island does not specifically privilege
sexual assault counselling records. Cf. Advisory Opinion to the
House of Representatives, 469 A.2d 1161, 1163, 1166 (R.I. 1983).
Rhode Island law protects against the disclosure of health care
records, but there are material differences between Rhode
Island's protections and those afforded under the Lampron-Dwyer
protocol. See R.I. Gen. Laws § 5-37.3-6.1.
First, the Rhode Island statute provides for advance notice
to the subject of the records and not to the record holder. See
id. In Massachusetts, by contrast, "[a]s keeper of the records,
18
and the entity to whom the [request is] addressed, [a rape
crisis center] has the obligation to assert the privilege
provided by § 20J on behalf of its clients." Fuller, 423 Mass.
at 220 n.3. Here, the center represents that it received no
notice of any proceedings in Rhode Island, and the language of
R.I. Gen. Laws § 5-37.3-6.1 suggests that no such advance notice
is required. The Superior Court judge initially expressed
specific concern about this lack of notice to the center. As
described above, advance notice to the record holder is a
crucial part of the Lampron-Dwyer protocol. Therefore, to the
extent that the center did not receive notice of the Rhode
Island proceedings, we would caution against using facts
determined therein to satisfy the Lampron-Dwyer protocol.
Second, in camera review is not by itself sufficient
protection for information presumptively privileged under § 20J.
Here, a magistrate of the Rhode Island court ordered in camera
review by a judge or magistrate before any documents would be
turned over to counsel. But disclosure even to a judge is
nevertheless a disclosure and one that our protocol strictly
limits. See Dwyer, 448 Mass. at 146; id. at 148-149 & n.3
(Appendix); Fuller, 423 Mass. at 225-226 ("disclosure, even in
the limited form of an in camera inspection, should not become
the general exception to the rule of confidentiality");
Commonwealth v. Bishop, 416 Mass. 169, 178 (1993), overruled on
19
other grounds by Dwyer, 448 Mass. at 139. Therefore, the
magistrate's order providing for in camera review was not
sufficient in itself to cure any deficiency in the Lampron-Dwyer
protocol.
Third and most important, Rhode Island law does not require
the stringent nondisclosure provisions of Lampron-Dwyer. If the
Rhode Island court decided to release records subject to the
privilege, Rhode Island law would not require the clerk to
retain them under seal, would not require a protective order
prohibiting the copying or disclosure of their contents as
described above, and would not require that a violation be
reported to a disciplinary authority. See Dwyer, 448 Mass. at
146; id. at 149 (Appendix). Neither would Rhode Island law
impose the same prerequisites for further copying or disclosure,
including the requirement that such copying or disclosure be
found "necessary" for the defendant to prepare for trial or else
to preserve his right to a fair trial, and the requirement that
recipients of such further disclosures be subject to criminal
contempt penalties for any violation of the relevant order. Id.
at 146; id. at 150 (Appendix).
It does appear that a judge of the Rhode Island court has
discretion to impose such protections, but they are not required
as in Massachusetts. Compare Dwyer, 448 Mass. at 139-150, with
DePina v. State, 79 A.3d 1284, 1289-1290 (R.I. 2013) (describing
20
balancing test required on third-party subject's motion to
quash), and State v. Burnham, 58 A.3d 889, 892-893, 896-899 &
n.10 (R.I. 2013) (noting discretionary disclosure to parties'
attorneys of alleged victim's mental health records in child
molestation case). See Holmes, 22 N.Y.3d at 315 (finding out-
of-State balancing test to provide insufficient protection).
In sum, we conclude that the protections afforded by the
State of Rhode Island, while not insubstantial, do not ensure
the stringent nondisclosure protections of this State's Lampron-
Dwyer protocol. Therefore, as there was a substantial
likelihood that the privilege would be abrogated in this respect
under Rhode Island law, a Superior Court judge needed to ensure
compliance with the Lampron-Dwyer protocol before ordering the
release of Massachusetts sexual assault counselling records to
the Rhode Island court.12
Conclusion. For the foregoing reasons, we vacate the order
allowing the motion to compel.
So ordered.
12We note with appreciation the Rhode Island court's
willingness, expressed in the certificate, "to enter an Order
directing compliance with all reasonable terms and conditions
prescribed by a Court of record in the Commonwealth of
Massachusetts having jurisdiction over[] [the witness] regarding
h[is] appearance."