Student and Nashoba Regional School District – BSEA #03-0860



<br /> Student and Nashoba Regional School District – BSEA #03-0860<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student and Nashoba Regional School District

BSEA # 03-0860

RULINGS REGARDING MOTION FOR PROTECTIVE ORDER REGARDING PRIVILEGED DOCUMENTS MOTION TO COMPEL PRODUCTION OF DISCOVERY AND SANCTIONS HEARING SCHEDULE

A. Motion for Protective Order Regarding Privileged Documents

1. Introduction, procedural history and positions of the parties .

By letter of October 20, 2003 from Nashoba’s attorney to Parent/Student’s attorney, Nashoba sought the discovery of additional information and documents. The request sought, among other things, copies of all documents pertaining to Student’s involvement or participation in counseling, copies of all documents regarding Student’s psychological, mental health or emotional status, diagnosis, prognosis or need created or prepared after June 1, 1999 and copies of all documents pertaining to Student’s health or medical status prepared on or after June 1, 1999. To the extent that Parent/Student did not have these documents within their custody, possession or control, Nashoba requested the name and address of each “counselor who has provided services to [Student]”, each “person who has treated [Student] for his emotional needs, and each “person who has provided medical care to Student]” so that Nashoba’s attorney could ask the BSEA to subpoena these persons and obtain the requested documents.

Simultaneously, Nashoba’s attorney filed a letter with the BSEA requesting an Order requiring Parent/Student to respond by October 30, 2003 to her supplemental discovery request in order to allow sufficient time to seek subpoenas and prepare for the Hearing scheduled to begin on November 17, 2003.

After considering Parent/Student’s written objection to the request for an Order, I issued an Order on October 24, 2003, requiring a response from Parent/Student by October 30, 2003.

On November 4, 2003, Nashoba’s counsel filed a request with the BSEA that subpoenas be issued to ten persons identified by Parent/Student as having been a counselor or who provided services to Student, treated Student for his emotional needs or provided medical care to Student. In its request, Nashoba asked that the subpoenas require each person to bring any and all documents concerning Student in their possession, custody or control. The BSEA then issued the requested subpoenas.

On November 3, 2003, Parent/Student’s attorney filed with the BSEA a Motion for Protective Order , seeking an order from the BSEA limiting access of Nashoba to Student’s mental health records on the grounds of relevance and privilege. The Motion was filed in anticipation of Nashoba’s seeking to obtain, through subpoena, all documents (pertaining to Student) held by each who person who has provided counseling or therapy to Student from June 1, 1999 to the present.

Nashoba responded to said Motion in writing on November 4, 2003, a Motion Hearing was held on November 6, 2003, and the parties were allowed until November 10, 2003 to file any further written argument.

Relying on a BSEA Ruling in a previous case ( In Re: Wilmington Public Schools , 3 MSER 171 (1997)), Parent/Student ask the Hearing Officer to review, in camera, each document sought by Nashoba to determine the document’s relevance and whether it should be protected by the psychotherapist privilege statute, social worker privilege statute, Health Insurance Portability and Accountability Act of 1996 or other privilege established under the common law.1

Nashoba has taken the position that no such individual review of documents is necessary or appropriate. Rather, relying only on the privilege statutes themselves, Nashoba takes the position that once Student/Parent appealed Nashoba’s proposed education plan, thereby placing in contention proposed educational services intended to address Student’s emotional impairments, Student/Parent have lost any protections they might have had on the basis of privilege, and Nashoba is therefore entitled to obtain every document from each of Student’s current and previous social workers and psychotherapists.

I consider these arguments in light of (1) the general purposes of the statutory privileges, (2) the language of the privilege statutes, as interpreted by the courts, and (3) the courts’ general concern regarding broad disclosure of confidential information without a showing of likelihood of relevance.

2. Purposes of the statutory privileges .

The Massachusetts Supreme Judicial Court (SJC) has explained the purposes of the statutory privileges as follows:

Whether the protected relationship involves physician, psychologist or certified social worker, all share the common purpose of encouraging the patient or client fully to disclose the nature and details of his illness or his emotions without fear of later revelation by one in whom he placed his trust and confidence. Disclosures of confidential information can harm more than the individual social worker-client relationship involved. If it becomes known that confidences are violated, other people may be reluctant to use social work services, and may be unable to use them to maximum benefit. The purpose of enacting a social worker-client privilege is to prevent the chilling effect which routine disclosures may have in preventing those in need of help from seeking that help.2

One need not venture far to see the relevance of this statutory purpose to students receiving special education services in order to address an emotional or other mental disability. These students would typically be receiving counseling or other therapeutic services necessary for them to access their education program. The effectiveness of such counseling or therapy may be undercut if a student shies away from candid, forth-right therapeutic sessions with his/her social worker or psychotherapist because his/her words may be disclosed to the school district’s attorney and administrators, and made part of the evidentiary record of a BSEA proceeding.

3. Statutory language .

The psychotherapist-patient privilege statute provides in relevant part:

The following words as used in this section shall have the following meanings:-

“Patient”, a person who, during the course of diagnosis or treatment, communicates with a psychotherapist;

“Psychotherapist”, a person licensed to practice medicine, who devotes a substantial portion of his time to the practice of psychiatry. “Psychotherapist” shall also include a person who is licensed as a psychologist by the board of registration of psychologists or a person who is a registered nurse licensed by the board of registration in nursing whose certificate of registration has been endorsed authorizing the practice of professional nursing in an expanded role as a psychiatric nurse mental health clinical specialist, pursuant to the provisions of section eighty B of chapter one hundred and twelve.

“Communications” includes conversations, correspondence, actions and occurrences relating to diagnosis or treatment . . . and any records, memoranda or notes of the foregoing.

Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition. . . .

The privilege granted hereunder shall not apply to any of the following communications:- . . .
(c) In any proceeding, except one involving child custody, adoption or adoption consent, in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected. . . .”3

The social worker privilege statute provides in relevant part:

Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a client shall have the privilege of refusing to disclose and of preventing a witness from disclosing, any communication, wherever made, between said client and a social worker licensed pursuant to the provisions of section one hundred and thirty-two of chapter one hundred and twelve, or a social worker employed in a state, county or municipal governmental agency, relative to the diagnosis or treatment of the client’s mental or emotional condition. . . .

The privilege granted hereunder shall not apply to any of the following communications:
(c) In any proceeding, except one involving child custody, adoption or adoption consent, in which the client introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between the client and the social worker be protected . . . .”4

It is not disputed that Nashoba is seeking documents which are protected by the above-quoted statutory privileges. It is also not disputed that by objecting to Nashoba’s proposed education plan, Student has “introduce[d] his mental or emotional condition as an element of his claim or defense.” Therefore, pursuant to subsection (c) of both statutory sections, my responsibility as the “presiding officer” is to determine whether “it is more important to the interests of justice that the communication be disclosed than that the relationship between the client and the psychotherapist [or social worker] be protected.” The SJC has made clear that no disclosure pursuant to subsection (c) may be made absent this determination, with sufficient findings.5

In its discussion of this statutory language, the SJC has stated that whether “it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected” must be determined in light of all factors presented, rather than there being any one particular factor or combination of factors that might be required as a prerequisite to disclosure of a patient’s communications.6

Nevertheless, it is instructive to note the five factors which justified a trial judge’s conclusion that the interests of justice in disclosure outweighed the need to protect the defendant’s otherwise confidential communications.

First, the defendant and therapist had no ongoing relationship that would have been
damaged or destroyed by the disclosure of the communications. Second, the truth-seeking function of the trial would have been seriously impaired had the therapist’s

testimony been excluded. Third, the suicide evaluations, conducted within days of the killings, were the only examinations of the defendant conducted at or around the relevant time period. Fourth, the defendant consulted with his attorney before he agreed to communicate with the therapist. Finally, on the advice of his attorney the defendant did not discuss with the therapist details of the crime or of his suicide attempt in the victim’s

apartment. The SJC concluded that “the combination of these five circumstances” justified disclosure of the otherwise privileged communications.7

Within the context of a special education dispute, the Hearing Officer may need to consider, for example, whether disclosure of confidential information may disrupt a therapeutic alliance necessary to meet effectively the Student’s special education needs, thereby undermining the very purpose of the special education program, or whether these risks are not substantial and disclosure is necessary to protect a party’s due process rights or to inform adequately the Hearing Officer regarding an issue in dispute.

Neither attorney has addressed these or other considerations relevant to a determination as to whether I should allow disclosure of otherwise protected documents pursuant to the balancing process described within subsection (c) of the psychotherapist and social worker privilege statutes.

4. Request for privileged documents without indication of likelihood of relevance .

I next consider a more general concern – that is, Nashoba’s seeking a very broad disclosure of confidential information without a showing of likelihood of relevance to the issues in dispute.

The Supreme Judicial Court (SJC) has explained that in a criminal case involving alleged rape or sexual assault where the criminal defendant moves to compel production of the records pertaining to the complainant and the complainant or the keeper of the target records refuses to produce the records because of a statutory privilege against disclosure, the judge first decides, with written findings, whether the records are privileged. Then, “counsel shall submit to the judge, in writing, the theory or theories under which the particular records
sought are likely to be relevant to an issue in the case.” Only if the judge finds that counsel’s “proffer shows that the records are likely to be relevant to an issue in the case”, does the judge then review the records in camera, out of the presence of all other persons, to determine whether the communications, or any portion thereof, are relevant. There is then a process to determine whether disclosure of the protected communications is necessary to provide the defendant a fair trial.8

In these kinds of cases, the SJC requires that counsel shows some basis of relevance of the particular records in dispute prior to a judge’s in camera review because even an in camera review results in a “piercing” of the privilege. As explained by the SJC, “full disclosure [to the trial judge], predicated solely on a defendant’s uninformed request may yield nothing for the defense, and the privilege would have been pierced unnecessarily.”9

I do not suggest that the above-described rules, as first explained by the SJC in Bishop regarding criminal cases of alleged rape or sexual assault, apply directly to a special education dispute. In criminal cases, there are important constitutional protections which argue strongly in favor of adequate disclosure to defense counsel in order to ensure a fair trial. However, even in the face of these constitutional protections which argue for disclosure, the SJC has made clear its concern (and the concerns expressed by a “vast majority of courts”10 ) that confidential information not be disclosed, even to a judge in camera, without an initial showing by counsel that the particular records sought are likely to be relevant to an issue in the case.

I conclude that in order for me to proceed with an in camera review of the documents in order to determine whether disclosure should occur pursuant to subsection (c) of the psychotherapist and social worker privilege statutes, I must first determine that Nashoba is not simply seeking “an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable” Nashoba to defend its proposed education plan.11

Perhaps in other situations the documents sought are more narrow in scope and their potential relevance is implicitly understood. But, in this case, Nashoba has made an extremely broad request – that is, for all records and other written documents held by ten professionals who have or are currently providing a variety of services, including counseling, therapy and medical services to Student. Neither party has addressed the question of likelihood of relevance of any particular documents.

5. Conclusions .

For these reasons, Parent/Student’s Motion for Protective Order is allowed, subject to the following conditions and procedures.

It is apparent that neither attorney anticipated that I would want to hear argument and perhaps evidence regarding the considerations addressed within parts A3 and A4 of this Ruling. I do not fault either attorney for failing to address these points. Before I can make a final determination regarding disclosure of privileged materials, I believe it necessary and appropriate for me to hear further from parties regarding the considerations described in parts A3 and A4.

As a practical matter, the process to consider further argument and evidence regarding disclosure of privileged documents cannot likely occur prior to the evidentiary Hearing, but may occur during the evidentiary Hearing itself. Nashoba may seek to establish, for example through the evidence of a witness, that a privileged document should be disclosed. I would then hear argument from the attorneys, and make a determination regarding disclosure.12

B. Motion to Compel Production and for Sanctions

1. Introduction, procedural history and positions of the parties .

Refer to part A1 of this Ruling for the initial procedural history regarding this Motion.

When Nashoba’s attorney did not receive the requested (and ordered) supplemental discovery responses by the October 30, 2003 deadline, she filed with the BSEA a Motion to Compel Production and Imposition of Sanctions on November 3, 2003. For relief, Nashoba sought hand-delivery of the discovery responses by close of business on November 4, 2003, postponement of the scheduled evidentiary Hearing and an order precluding the admission of certain evidence.

Parent/Student’s attorney responded on November 3, 2003, stating that she had sent the required responses to Nashoba’s attorney on October 30, 2003 by facsimile and U.S. mail.

Nashoba’s attorney further responded by letter to me on November 4, 2003, disputing these factual allegations but also stating that the responses were received through the U.S. Mail on November 4, 2003. In her response, Nashoba’s attorney further argued that the responses were incomplete, that Parent/Student’s attorney improperly arranged to have their expert contact Nashoba staff directly rather than through Nashoba’s attorney, and that Parent/Student have only recently introduced a new demand for relief with the result that the Hearing should be postponed. I will consider each of these claims.

2. Lateness of the response from Parent/Student’s attorney .

I assume, for purposes of this Ruling, that Nashoba is correct that it did not receive the responses from Parent/Student’s attorney until November 4, 2003 – that is, two business days late. On the basis of a submission from Parent/Student’s attorney, I further assume that she attempted to send her response to Nashoba by facsimile on October 30, 2003. It seems most likely that the transmission was unsuccessful.

I understand that Nashoba’s attorney was substantially inconvenienced by the delay in receiving the requested information from Parent/Student, given the attorney’s busy schedule and her extensive commitments. Yet, Nashoba has not provided sufficient basis for me to determine that it was in fact harmed by the delay so that sanctions are warranted.

Moreover, the only sanction that can be seriously considered in response to the delay in receiving the discovery would be a postponement of the Hearing. Nashoba has strenuously sought such a postponement as a sanction.

However, there are compelling reasons, as explained in part C of this Ruling, for not further delaying the evidentiary Hearing. I also note that Nashoba’s attorney, in her requested relief for violation of my Order, sought hand-delivery of the requested information on November 4, 2003, which was the date she in fact received the information from Parent/Student’s attorney.

3. Incompleteness of responses .

Nashoba has argued that the discovery responses of Parent/Student are incomplete, and that sanctions are warranted. As explained in another matter, I may order sanctions for a discovery violation only if there has been an order of a BSEA Hearing Officer regarding production of discovery and the order has been violated.13

There was an order by me, dated October 24, 2003, requiring a discovery response. Neither attorney has provided me with a copy of Parent/Student’s actual response to the October 24 th Order. I am unable to determine whether Parent/Student have failed to comply with this Order, other than lateness of response which I have addressed immediately above.

4. Parent/Student’s expert .

Nashoba alleges that Parent/Student’s attorney caused Parent/Student’s expert to contact Nashoba staff without the knowledge of Nashoba’s attorney. Nashoba argues that this was improper and that Parent/Student should be sanctioned by precluding the expert from testifying or submitting a written report into evidence.14

Nashoba relies on Rules 4.2 and 8.4 of the Massachusetts Rules of Professional Conduct. Rule 4.2 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Comment 4 to Rule 4.2 provides:

In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule.

Rule 8.4 provides in relevant part:

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . . .”

Nashoba relies on several SJC decisions which discuss the scope of Rule 4.2 within the context of an attorney contacting the opposing party without permission from that party’s attorney15 and relies on a Massachusetts Superior Court decision applying Rule 4.2 to a situation where the Assistant District Attorney arranged for an expert to interview and evaluate the defendant without first going through defendant’s counsel.16

The Superior Court decision concludes that the expert was acting as the Assistant District Attorney’s agent, that the Assistant District Attorney had direct supervisory authority of the expert regarding what he saw and what he did, and that the Assistant District Attorney should therefore be held responsible for violating Rule 4.2. The Court further determined that the defendant would be substantially prejudiced if a factfinder were allowed to consider the expert’s report or testimony “that constituted the fruits of this ethical violation”, and therefore excluded the expert’s report and testimony.

On the basis of the attorneys’ representations and arguments, it is simply not possible for me to determine at this time the extent of the ethical violation that may have occurred and, perhaps most importantly, what sanctions if any may be appropriate. There remain difficult factual and legal issues in dispute. For example, was the expert in fact functioning at the direction of Parent/Student’s attorney? Was the expert’s contact with persons covered under comment 4 of Rule 4.2? If so, were the purposes of Rule 4.2 violated?17 Does a BSEA Hearing Officer have a role in the enforcement of Rule 4.2 or should the matter be referred to the Board of Bar Overseers? Did the alleged unethical conduct compromise the reliability or credibility of the expert’s testimony or report?

I will defer my decision until the evidentiary Hearing, during which I may allow Parent/Student’s expert to testify, at the outset, regarding the nature and circumstances of his contact with Nashoba’s staff in order to assist my resolution of this issue. I will then consider any further arguments from the attorneys before ruling on this issue.

5. New claim .

During a conference call with the attorneys on November 6, 2003, I asked Parent/Student’s attorney to state what issues are in dispute and what relief is being requested. She explained that, based on a recent review by their expert, Parent/Student may be seeking placement at the CASE collaborative. However, Parent/Student’s attorney clarified that no referral or intake had been performed by CASE, nor do they know if there is an opening there for Student should placement be appropriate. Parent/Student’s attorney further stated that she would not be seeking, at the evidentiary Hearing, that I issue a finding regarding the appropriateness of CASE, but that Parent/Student believe that CASE appears to be the kind of placement that would be appropriate for Student and anticipate requesting that I find that Nashoba must create or locate a program that provides the services offered by CASE.

Nashoba’s attorney argues that having learned of this for the first time on November 6 th , there is insufficient time for Nashoba to prepare for the November 17 th Hearing by sending staff to observe the CASE program, obtain information about its programming and clinical services, obtain copies of the IEPs of all the students with whom Student would be grouped, etc. She also argues that this is precisely the information requested in the supplemental discovery request that was due on October 30, 2003. For these reasons, Nashoba seeks postponement of the Hearing.

While I am sympathetic to Nashoba’s not learning about Parent/Student’s requested relief until November 6 th , I am not persuaded that Nashoba has been so prejudiced as to require postponement of the Hearing.

Since Parent/Student are not asking that I make a finding regarding the appropriateness of the CASE program for Student, I am not persuaded that Nashoba needs to obtain IEPs of students at CASE and observe the CASE program in order to prepare defense of its proposed special education services. Additional preparation by Nashoba may, of course, be necessary, but presumably this can occur during the eleven days between November 6 th and November 17 th . I also note the importance of this case proceeding to Hearing without further delay, as explained more fully below.

6. Conclusion .

For these reasons, Nashoba’s Motion to Compel Production and Imposition of Sanctions (including its request to postpone the Hearing) is denied; provided, however, that there will be further consideration and perhaps relief pursuant to the alleged ethical violation discussed in part B4 above will occur at the evidentiary Hearing.

Hearing Schedule

This case has remained open before the BSEA for too long a period of time without either informal resolution by the parties or a final determination of the merits by the BSEA. From the time that the Request for Hearing was filed with the BSEA on September 17, 2002, Nashoba has consistently taken the position that it has and continues to offer an appropriate program, but Student and his Parent have declined to participate in it in any meaningful manner. Parent/Student have taken the position that Nashoba has failed to offer an appropriate education, with the result that Student has received very little education or educational benefit. Therefore, for different reasons, the parties appear to be in agreement that during the life of this dispute, Student has actually received little effective education and a correspondingly small educational benefit.

Hearing dates have been scheduled in the past. Apparently believing the dispute was substantially settled, Parent/Student’s attorney made an unopposed request and obtained postponement of Hearing dates. Months have gone by while the parties discussed settlement or waited for an evaluation which offered the promise of resolving the dispute. None of this has brought the dispute to resolution, and none of this has made any significant difference regarding Student’s special education.

For these reasons, I conclude that a high priority must be given to bringing this matter to resolution as quickly as possible through an evidentiary Hearing unless the parties are able conclusively to settle their differences before then.

The current three Hearing dates (November 17, 18 and 19, 2003) were scheduled on September 25, 2003. By Order of September 23, 2003, I advised the parties that three Hearing days would be scheduled “unless the parties agree that more or fewer dates should be scheduled.” No additional Hearing days were requested by either party.

At a conference call, initiated by me, on November 6, 2003, I inquired as to the issues in dispute, requested relief, witnesses to be called and expected number of Hearing days needed for these witnesses. The matters identified as being in dispute were prospective claims and compensatory claims. At my suggestion, the parties agreed to bifurcate the Hearing so that we would proceed at this time only with the prospective issues. The prospective claims are limited to whether Nashoba’s proposed special education plan (including any tutoring) is appropriate and if not, whether Nashoba should be ordered to locate or create appropriate services. The prospective claims include no request that I consider any particular alternative placement. During the conference call, the attorneys identified their proposed witnesses and opined that six days of Hearing (a conservative estimate in my opinion) would be needed to hear these witnesses. Given the practical difficulties of scheduling an additional three days of Hearing and intervening school vacations, it is fair to assume that the additional three Hearing days would not be completed until the second half of January or some time in February 2004.

Because Student has not been effectively educated for a significant period of time, because this situation may continue until an evidentiary Hearing is completed and a decision issued, because the parties appear to be unable or unwilling to self-limit the number of Hearing days requested and because it is clear to me that the relatively limited nature of the prospective claims can be adequately addressed through presentation of evidence and cross-examination by both sides during a three-day Hearing, the following scheduling Order is issued:

This matter shall proceed to an evidentiary Hearing as scheduled on November 17, 18 and 19, 2003 from 10 AM to approximately 5:00 PM the first two Hearing days and from 10:00 AM until completion of the Hearing on the third Hearing day, at Catuogno Court Reporting, 446 Main Street, Worcester, MA,. (The parties shall be prepared to stay as late as necessary on November 19 th in order to complete the Hearing on that day.)

In order to ensure a fair and equitable distribution of hours between the two attorneys and to avoid excessively long hearing days, each attorney shall be limited to eight hours for purposes of both direct examination and cross-examination of witnesses. In other words, if Parent/Student’s attorney, for example, spends six hours examining her witnesses, she will then have no more than two hours for purposes of cross-examination of Nashoba’s witnesses. Or, if Nashoba’s attorney, for example, spends three hours cross-examining her opponent’s witnesses, she will need to complete the direct examination of her own witnesses within five hours. Following the Hearing, the attorneys will be given approximately one week to file written argument. I anticipate issuing a preliminary order or decision within one week of receiving the written arguments.18

Order

Parent/Student’s Motion for Protective Order is ALLOWED , subject to the conditions and procedures set forth in part A5 of this Ruling.

Nashoba’s Motion to Compel Production and Imposition of Sanctions is DENIED , subject to the need to consider further the alleged ethical violation as explained in part B4 of this Ruling.

A Scheduling Order is issued, as set forth in part C of this Ruling.

By the Hearing Officer,

_________________

William Crane

Dated: November 12, 2003


1

I explained during the November 6 th Motion Hearing that I am not prepared to consider privilege pursuant to common law or the Health Insurance Portability and Accountability Act of 1996 (HIPA) without legal analysis supporting these claims. Parent/Student provided this analysis regarding HIPA in their November 10, 2003 memorandum but have not provided analysis regarding a common law claim. Nashoba’s attorney has not had an opportunity to respond to Parent/Student’s analysis under HIPA, and I am reluctant to consider the implications of HIPA regarding this dispute without Nashoba’s having further opportunity to respond. In this Ruling, I therefore consider only the psychotherapist and social worker privileges.


2

Commonwealth v. Collett , 387 Mass. 424, 428 (1982) (internal quotation marks and citations omitted).


3

MGL c. 233, Section 20B.


4

MGL c. 112, Section 135B.


5

Commonwealth v. Seabrooks , 433 Mass. 439, 448-449 (2001) (“As the statute itself makes clear, the introduction of a defendant’s mental or emotional condition in a later proceeding is insufficient, without more, to bring the defendant’s privileged communications within the exception [of the statutory privilege].”).


6

Id. at 448-449.


7

Id. at 449-450.


8

Commonwealth v. Bishop , 416 Mass. 169, 181-182 (1993).


9

Bishop , supra, at 177.


10

In Bishop , supra, at 178 n.5, the SJC explained that the “decisions of a vast majority of courts that have spoken on the issue have required a threshold showing of some degree to justify piercing a privilege.” See State v. Howard, 221 Conn. 447, 457 (1992) (defendant must show that “reasonable ground to believe” that failure to produce records would likely impair right to impeach witness); Stripling v. State, 261 Ga. 1, 6 (no in camera review absent reasonably specific request for relevant and competent information), cert. denied, 112 S. Ct. 593 (1991); People v. Foggy, 121 Ill. 2d 337, 349-350 (no in camera review absent any demonstrated need), cert. denied, 486 U.S. 1047 (1988); Zaal v. State, 326 Md. 54, 81-82 (1992) (defendant must show some relationship between the charges, the information sought, and the likelihood that relevant information exists in the records); State v. Hummel, 483 N.W.2d 68, 72 (Minn. 1992) (no in camera review absent plausible showing that information material and favorable); State v. Gagne, 136 N.H. 101 (1992) (to trigger in camera review defendant must show reasonable probability that the records contain information that is material and relevant); State v. Cusick, 219 N.J. Super. 452, 457 (1987) (court found records may be necessary for determination of issue prior to in camera review); State v. S.H., 159 Wis. 2d 730, 738 (Ct. App. 1990) (in camera review if defendant shows records contain material evidence); Gale v. State, 792 P.2d 570, 581 (Wyo. 1990) (adopting Ritchie standard).


11

Bishop , supra, at 182, quoting from People v. Gissendanner , 48 N.Y.2d 543, 549 (1979).


12

I understand that this process does not well serve Nashoba’s desire to obtain and review the documents prior to the evidentiary Hearing. Ideally, the process would have occurred well before the evidentiary Hearing. For this to occur, Nashoba might have filed a Motion to Compel Production of Documents (relative to its original request to Parent/Student seeking the privileged documents), then requested a Hearing relative to its Motion and obtained subpoenas from the BSEA directing persons holding those documents to attend the Motion Hearing. This would have allowed for a process before the BSEA to resolve this matter prior to the evidentiary Hearing. Alternatively, Nashoba could have privately subpoenaed the documents at an earlier time. Instead, Nashoba requested subpoenas directing persons to come (with documents) to the evidentiary Hearing.


13

In Re: Fitchburg Public Schools , BSEA # 03-2424, 9 MSER 226, 236-237 (2003).


14

Nashoba’s attorney has explained that had Parent/Student’s attorney made a request to her that the expert be allowed to observe a Nashoba program or talk with Nashoba staff, Nashoba’s attorney would not have allowed the observation without clear rules and a co-observer from Nashoba, and she would not have allowed an interview of Nashoba staff without her being present and tape-recording the interview.


15

Clark v. Beverly Health and Rehab. Services , SJC-08953 (October 29, 2003); Messing, et al v. Harvard , 436 Mass. 347 (2002).


16

Commonwealth v. Louhisdon , 2001 WL 360047 (Mass. Super.).


17

I note that the purposes of Rule 4.2, as explained by the SJC, “are not to protect a corporate party from the revelation of prejudicial facts, but to protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney.” Messing, et al v. Harvard , 436 Mass. 347, 358 (2002).


18

During the course of the Hearing, a party may request that I allow a limited amount of additional time to complete direct testimony or cross-examination. I will consider such a request if it can be demonstrated that my original assessment of time needed was too restrictive and that allowing the request will not unduly delay the completion of the Hearing. In setting reasonable time limitations on the evidentiary Hearing, I rely on decisions of the First Circuit and Massachusetts appellate courts which have upheld a trial judge’s authority to limit the length of a hearing. Borges v. Our Lady of the Sea Corp., 935 F.2d 436 (1st Cir. 1991) (“in this era of crowded district court dockets federal district judges not only may but must exercise strict control over the length of trials, and are therefore entirely within their rights in setting reasonable deadlines in advance and holding the parties to them”); Guardianship of Brandon , 424 Mass. 482, 493 (1997) (discussing the imposition of time limits on witnesses’ testimony); Clark v. Clark , 47 Mass. App. Ct. 737, 746 (1999) (“A judge . . . should be able to set reasonable limits on the length of a trial. This includes the right to set reasonable limits on the length of the direct and cross-examination of witnesses.”); Chandler v. FMC Corp ., 35 Mass. App. Ct. 332, 338 (“a judge has wide discretion to impose reasonable limits on the length of the direct and cross-examination of witnesses”).


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