Harden v. Boston Scientific Corporation et al

Filing 82

Magistrate Judge Donald L. Cabell: ORDER entered. ORDER ON DEFENDANTS' FIRST MOTION TO COMPEL PRODUCTION OF PLAINTIFF'S CORI (DKT. NO. 75) & PLAINTIFF'S MOTION TO QUASH SUBPOENA AND MOTION FOR PROTECTIVE ORDER (DKT. NO. 77) granting in part and denying in part 75 Motion to Compel; denying 77 Motion to Quash. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

KELLY HARDEN,
Plaintiff,
v.
Docket No. 15-cv-11503-MLW
BOSTON
SCIENTIFIC
CORP.,
COLUMBIA
CONST.
CO.,
ROBIE
WINDOW SYSTEMS, INC., JONATHAN
ROBIE, TIMOTHY GREER, JOHN DOE
CORP., JOHN AND/OR JANE DOE
Defendants.

ORDER ON DEFENDANTS’ FIRST MOTION TO COMPEL PRODUCTION OF
PLAINTIFF’S CORI (DKT. NO. 75) & PLAINTIFF’S MOTION TO QUASH
SUBPOENA AND MOTION FOR PROTECTIVE ORDER (DKT. NO. 77)

CABELL, U.S.M.J.:
Introduction
The defendants move for an order compelling the Department of
Criminal Justice Information Services (DCJIS) to comply with a
deposition

subpoena

requiring

it

to

produce

the

plaintiff’s

Criminal Offender Record Information (CORI). (Dkt. No. 75).

The

plaintiff moves to quash the subpoena and for a protective order.
(Dkt. No. 77).

After consideration, the defendants’ motion will

be ALLOWED, subject to certain limitations. The plaintiff’s motion
to quash will be DENIED.

Relevant Background
The defendants’ present motion to compel represents their
third effort to obtain the plaintiff’s CORI.
the defendants’ first two attempts.
defendants

moved

for

an

order

The Court rejected

First, in September 2016 the

granting

them

access

to

the

plaintiff’s CORI. (Dkt. No. 47). The plaintiff opposed the entire
motion but in reality mostly opposed the motion to the extent it
sought records more than ten years old, including all juvenile
records.

(Dkt. No. 48).

The Court denied the motion without

prejudice on the ground that the proper course of action (in the
Court’s view) was for the defendants to seek this information by
service of a subpoena on the DCJIS.

(Dkt. Nos. 50-51).

Next, and in response to the Court’s denial, the defendants
served the DCJIS with a notice of deposition (but not a subpoena)
for the keeper of records and instructed the putative deponent to
bring the plaintiff’s “entire file.”

The DCJIS responded that it

would not comply absent a court order.

The plaintiff moved to

quash and for a protective order on the ground, inter alia, that
the defendants had not served the DCJIS with a subpoena.
No. 61).

(Dkt.

This Court concluded that a notice of deposition in this

context, unlike a subpoena, is not an enforceable court order,
notwithstanding the functional similarity between the two.

The

Court concluded that there was therefore nothing for the Court to
2

act upon and denied the plaintiff’s motion to quash as unripe.
(Dkt. No. 66).
Now, the defendants have this time served the DCJIS with a
subpoena

seeking

the

juvenile records).

plaintiff’s

adult

records

(but

not

his

As before, the DCJIS objects, but it has not

moved to quash the subpoena, and it has indicated it will comply
with the subpoena if ordered by the Court.
Discussion
Under Fed. R. Civ. P. 26, a party is entitled to discover any
non-privileged 1 matter that is relevant to any party’s claim or
defense.

The defendants assert here that M.G.L. c. 6, § 172

authorizes an attorney of record in a civil litigation matter to
“request [CORI information] from the [DCJIS] for the purposes of
witness impeachment or trial strategy,” citing Howe v. Town of
North Andover, 784 F. Supp. 2d 24, 32 and M.G.L. c. 6, § 172(c).
(Dkt. 76, p.1).

As a point of clarification, while this exact

1

The DCJIS asserts that CORI records are privileged and in fact objects to
the subpoena on that ground. See Fed. R. Civ. P. 45(e)(2). Relying on case
law providing that a privilege may be created by statute, the DCJIS asserts
that CORI records are privileged because they are protected from disclosure by
state law, M.G.L. c. 6, § 172. (Dkt. 75, Exh. 3, p.2-3). To the extent it
matters, the Court does not find this argument persuasive here. Even accepting
that a privilege may be created by statute, nothing in the CORI statute purports
to protect CORI records from disclosure as privileged. See e.g., by contrast,
M.G.L. c. 233, § 20J (explicitly protecting from disclosure communications
between sexual assault counselor and victim of sexual assault).
On the
contrary, the very purpose of the CORI statutes (and accompanying CMRs) appears
to be to set out the mechanism by which members of the public may obtain an
individual’s CORI.

3

language does appear in Howe, it does not appear anywhere in the
current version of M.G.L. c. 6, § 172, let alone subsection (c).
It appears that this language likely has since been removed from
§ 172.

Nevertheless, the statute does contemplate circumstances

under which members of the public may obtain CORI information, and
a specific Massachusetts regulation explicitly contemplates that
an attorney may with a valid court order obtain from the DCJIS a
non-client’s CORI. 803 C.M.R. § 2.07(3)(b) (“[a]n attorney seeking
to obtain a non-client’s CORI, beyond what is available via Open
Access to CORI, for litigation purposes shall submit a valid,
signed court order directly to DCJIS.”).
With this background in mind, and given the defendants’
showing of the potential relevance of the plaintiff’s CORI, I find
that the defendants are entitled to discover the plaintiff’s adult
criminal record information from the DCJIS.

I accordingly ALLOW

the defendants’ motion to compel production of the plaintiff’s
adult CORI, and hereby order the DCJIS to provide to the abovenamed defendants a copy of the plaintiff Mr. Kelly Harden’s CORI
information.
information

The
provided

defendants’
by

the

receipt

DCJIS

and

shall

be

handling

of

any

subject

to

the

limitations contained in M.G.L. c. 6, § 178, as well as the three
additional limitations below.
First, with respect to all CORI materials disclosed by the
4

DCJIS to defense counsel of record in this case, defense counsel
of record and the agents of defense counsel (members of the office
of defense counsel who are directly engaged in assisting in the
legal defense of this case, and other persons retained by defense
counsel for the purpose of assisting in the legal defense of this
case)

may

further

disclose

such

materials,

or

information

contained therein, only for the purpose of the legal defense of
the above-captioned case.

Such permissible disclosure by defense

counsel of record and the agents of defense counsel of record
includes

providing

the

above-referenced

materials,

and

the

information contained therein, to the defendants for the purpose
of the legal defense of the above-captioned case.
Second, defense counsel of record may disclose such materials,
and information contained therein, to potential witnesses only for
the purpose of the legal defense in this matter, provided that
defense counsel of record have made a good faith determination
that such disclosure is necessary to the proper preparation of the
legal defense in this case. In addition, defense counsel of record
must redact any social security numbers, dates of birth, home
addresses, names of minor children, and financial account numbers
of the plaintiff from the copies of CORI materials shown to such
witnesses.
Third,

no defendant nor

any other person
5

receiving from

defense counsel of record or the

agents of defense counsel the

CORI materials, or the information contained therein, disclosed to
defense counsel by the DCJIS in this case, is permitted to further
disseminate or further disclose such materials or information for
any purpose at any time.
As noted above, this Order relates only to the plaintiff’s
adult

record;

the

DCJIS

should

not

produce

any

information

regarding juvenile offenses.
The Court presumes that the defendants will provide to the
plaintiff a copy of any information received from the DCJIS.
In light of the foregoing, the plaintiff’s motion to quash
and for a protective order is DENIED.

SO ORDERED.

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

April 18, 2017

6