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Commonwealth v. Fremont Investment & Loan

Supreme Judicial Court of Massachusetts · 2008 · Civil Procedure

Civil ProcedureConstitutional Lawpublic records lawprotective orderinherent judicial powerart. 30separation of powersRule 24

Facts

In the Attorney General's enforcement action against Fremont over alleged unfair and deceptive mortgage lending practices, the Superior Court entered a protective order governing confidential discovery materials. Fremont designated about 5.5 million pages as confidential, and the Attorney General did not challenge those designations; the case later settled by consent order. Lieberman then requested categories of documents from the Attorney General under the public records law, but the Attorney General refused to produce documents Fremont had designated confidential. Lieberman filed a separate public records action and also moved to intervene in the enforcement action to challenge access to the documents.

Issue

Does the Massachusetts public records law require the Attorney General to disclose documents received in litigation when those documents are covered by a judicial protective order? Also, did the trial court properly deny Lieberman's motion to intervene in the enforcement action under Mass. R. Civ. P. 24?

Rule

The public records law does not, by implication, invalidate or override an otherwise properly entered judicial protective order, because courts possess inherent constitutional authority to issue protective orders and statutes should be construed to avoid serious constitutional doubts absent a clear legislative statement. Under Mass. R. Civ. P. 24, a requester seeking access to documents covered by a protective order is not entitled to intervention as of right when his interest is only in the documents rather than the property or transaction that is the subject of the action, but permissive intervention may be appropriate to challenge the protective order, subject to the trial judge's discretion and consideration of delay, prejudice, and related factors.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Massachusetts Office of Consumer Affairs sued Harbor Point Servicing, a fictional mortgage company, in Superior Court in Boston. During discovery, the judge entered a protective order covering materials designated confidential under Rule 26(c), and the agency later received thousands of pages under that order. After the case settled, Maya Torres requested those documents from the agency under the public records law, arguing that no statutory exemption clearly applied.

How should a Massachusetts court most likely rule on Maya's public records claim?

Explanation. The majority held that the public records law is silent about judicial protective orders and should not be construed to invalidate them by implication. Reading the statute to compel disclosure despite a properly entered protective order would raise serious constitutional doubts because issuing protective orders falls within the judiciary's inherent authority protected by art. 30. Therefore, the absence of a specific public-records exemption does not itself require disclosure.