Commonwealth of Massachusetts
Supreme Judicial Court
ADOPTION OF [CHILD]
On Appeal from an Order of the
Juvenile Session of the [redacted] Division
of the District Court Department
BRIEF OF AMICUS CURIAE
JUSTICE FOR CHILDREN
TO THE HONORABLE COURT:
Justice for Children respectfully files this Brief of Amicus Curiae.
Should a child be penalized for a mistake made by an expert witness?
That is the question this court must answer. The implications of many federal
and state cases suggest that the answer is no. A non-testifying expert’s
opinion is protected under the work product doctrine, and an expert cannot
unilaterally waive this protection. Moreover, any blame that may be placed
upon the Child’s attorney is unwarranted because an inadvertent disclosure of
privileged work product is not sufficient to overcome the overriding intent of
the privilege: to protect the innocent client. Regardless of who made the
mistake in this case the child whose welfare is at stake in the termination
proceeding, should not be punished for the mistake.
STATEMENT OF PROCEDURAL FACTS
This appeal arises from a decision by the [redacted] District Court
terminating the Father’s and Mother’s parental rights and paving the way for
the foster family’s adoption of the Child. (Attorney General Brief at 1.) Only
the Father appeals the decision. (Attorney General Brief at 3.) Specifically,
the Father appeals from the trial court’s decision to strike statements included
in the court investigator’s report that were made by an expert hired to
represent the Child. (Appellant’s Brief at 9-30.) The Father also appeals from
the trial court’s denial of his request to call the expert to testify. (Appellant’s
Brief at 9-30.) The basis of the Father’s argument on appeal is that any
privilege that could have been asserted by the attorney for the Child regarding
the opinions of the expert has been waived. (Appellant’s Brief at 9-30.)
The expert who allegedly waived the work product privilege was
retained by the attorney for the Child to assist in the determination of the best
interests of the Child. (Appellee’s Brief at 24.) The expert was purely a
consulting, non-testifying expert of the child. (Appellee’s Brief at 24.)
Moreover, the expert was not the guardian ad litem and was not hired by the
court. (Appellee’s Brief at 24.)
The expert’s independent investigation consisted of interviews with the
father, mother, child and foster family. (Appellant’s Brief at 10.) Based upon
these interviews, the expert formed opinions and expressed them to the court
investigator. (Appellant’s Brief at 10-11.) The court investigator included
these opinions in her report to the court, and the court properly struck them
from the report. (Appellee’s Brief at 27.) The court also rejected the
Appellant’s request to call the expert to testify. (Attorney General Brief at 35.)
Regarding waiver of the work product doctrine, the Appellant asserts
that the attorney for the Child permitted the expert to speak with the court
investigator and with the Appellant’s attorney himself. (Appellant’s Brief at 10-
12.) The attorney for the Child admits that he allowed the expert to speak with
the court investigator, but the expert was instructed to discuss only
background information. (Appellee’s Brief at 26.) Moreover, the attorney for
the Child admits that he allowed the Appellant’s attorney to speak with the
expert “as a courtesy” because the Appellant’s attorney was new to the case.
(Appellee’s Brief at 26.) The Child’s attorney did not allow the expert to
respond to the Appellant’s counsel’s request for a written statement regarding
her opinions. (Appellee’s Brief at 25.)
This amicus curiae brief was prepared in response to this Court’s
request for briefs on the following issue:
“the application of the work product doctrine and waiver principles
in care and protection and termination proceedings to preclude or
allow the use of opinions and observations of another party’s
Supreme Judicial Court for the Commonwealth Announcement, SJC-08547.
ARGUMENT AND AUTHORITIES
I. The work product doctrine applies to the opinions of a non-
The protection of the work product doctrine is not limited to the opinions
of attorneys, as the Appellant’s Brief suggests. (Appellant’s Brief at 19.)
The statements made by the Child’s expert in this case are protected
under the work product doctrine, and cannot be used as evidence in the
termination proceeding. Therefore, the court properly struck the statements
from the court investigator’s report and refused the father’s request for the
expert to testify.
One purpose of the work product doctrine is to encourage careful and
thorough preparation by the attorney. Cynthia B. Feagan, Issues of Waiver in
Multiple-Party Litigation: The Attorney-Client Privilege and the Work Product
Doctrine, 61 UMKC L. REV. 757, 773 (1991). The doctrine fosters the
adversarial process by providing attorneys with a certain degree of privacy
and freedom from unnecessary intrusion by opposing parties and their
counsel. Id., citing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). While
confidentiality is the heart of the attorney-client privilege, selective strategic
disclosure is entirely consistent with the work product doctrine. Feagan, supra
Under Massachusetts law, a party may not discover facts known or
opinions held by an expert who has been “retained or specially employed by
another party in anticipation of litigation or preparation for trial and who is not
expected to be called as a witness at trial.” MASS. R. CIV. P.
26(b)(4)(B)(emphasis added). The only exception occurs if a party makes “a
showing of exceptional circumstances under which it is impracticable for the
party seeking discovery to obtain facts or opinions on the same subject by
other means.” Id.
In applying rules similar to that of Massachusetts, other states have held
that the opinions of consulting experts constitute work product, and may only
be divulged in exceptional circumstances. See State of Florida v. Marks, 758
So.2d 1131, 1136 (Fla. Dist. Ct. App. 2000); Pioneer Lumber, Inc. v. Bartels,
673 N.E.2d 12 (Ind. App. 1996); Coyle v. Estate of Simon, 588 A.2d 1293
(N.J. Super. Ct. App. Div. 1991). The discovery of facts known and opinions
held by a non-testifying expert are the work product of the attorney retaining
the expert. State ex rel. Tracy v. Dandurand, 30 S.W.3d 831 (Mo. 2000).
A party may obtain discovery of documents and tangible things
prepared in anticipation of litigation by or for that other party’s representative
only upon a showing that the party seeking discovery has a substantial need
of the materials in the preparation of his case and that he is unable without
undue hardship to obtain the substantial equivalent of the materials by other
means. MASS. R. CIV. P. 26(b)(3) (emphasis added). “Substantial need”
requires a showing that the item plays an exceptionally important part in the
preparation of the discoverer’s case for trial. Walker v. Bertucci’s, 1997 Mass.
Super. LEXIS 490, *4 (Mass. Super. Ct. 1997). To meet the standard of
undue hardship “one must convince the court that the materials sought
encompass, in a wholly unique, unduplicable manner, the information sought;
and further that even if the same or similar data were available elsewhere,
obtaining it would involve a grossly disproportionate expenditure of time, or
money or both.” Id.
Finally, in some jurisdictions, the opinions of a consulting expert enjoy a
special protection. Even if the substantial need and undue hardship
exceptions are established, a court shall not order disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation. State of Connecticut Dep’t
of Trans. v. Steinman Boynton Gronquist & Birdsall, Inc., 1998 WL 323251,
*12 (Conn. Super. Ct. 1998); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12
(Ind. App. 1996). Under this rule, the opinions of a nontestifying expert may
not be obtained by another party, even if the exceptions apply.
II. The Child’s attorney did not waive the work product doctrine
A party seeking discovery may be able to overcome the work product
doctrine if it can establish waiver. However, the work-product protection is not
automatically waived by disclosure to third parties. Instead, the relevant
considerations in determining waiver are the intent of the attorney who
disclosed the information and the person to whom the information was
disclosed. Edna S. Epstein, THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK-
PRODUCT DOCTRINE 422-23 (3d ed. 1997).
A. The Child’s attorney’s inadvertent disclosure did not waive
the work product doctrine.
The work product doctrine was not waived by the Child’s attorney when
he allowed the expert to speak with the court investigator because the expert
was authorized to discuss only background facts, not her opinions.
Accordingly, the revelation of the expert’s opinion was not intentional and
constitutes an inadvertent disclosure by the attorney.
Many states do not consider an inadvertent disclosure to be a waiver of
the work product protection. Abamar Housing and Dev., Inc. v. Lisa Daly
Lady Decor, Inc., 698 So.2d 276, 278 (Fla. Dist. Ct. App. 1997); Dalen v.
Ozite Corp., 594 N.E.2d 1365 (Ill. App. Ct. 1992); Adler v. Shelton, No. L-
4659-97, 2001 WL 863540, at *8 (N. J. Super. Ct. 2001); John Blair
Communications, Inc. v. Reliance Capital Group, L.P., 582 N.Y.S.2d 720 (N.Y.
App. Div. 1992). The appropriate question when an inadvertent disclosure of
a work product is involved “is not whether it remains essential to continue to
recognize the privilege; the question, rather is whether there is cause not to
do so, such as that recognition might work an injustice or impose an undue
burden on the judicial system.” Walker, 1997 Mass. Super. LEXIS 490, *4.
The Massachusetts Superior Court has considered the following
factors and found that waiver has occurred:
1. if the party to whom work product is inadvertently disclosed can
demonstrate that it was misled by, or that it relied to its detriment
on, such inadvertent disclosure;
2. if the inadvertent disclosure occurred so far in the past or
otherwise under circumstances where it was clear that recognition
of the privilege would be an exercise in futility;
3. if the party invoking the privilege failed to take even minimally
adequate precautions to guard against inadvertent disclosure; and
4. if the court could infer from a party’s gross negligence or complete
indifference that, at the time disclosure was made, the party
actually did intend to waive the privilege.
Walker, 1997 Mass. Super. LEXIS 490, *4.
With regard to the first factor, the Appellant did not rely on the
disclosure to his detriment because he was free at all times to seek his own
expert to testify on his behalf. In fact, the Appellant hired two experts to
evaluate him. (Attorney General Brief at 9-10.) Both doctors determined the
Appellant has anger management problems and needs therapy. (Attorney
General Brief at 10.) Moreover, the role of the child’s expert was clearly
established with the court and did not mislead the Appellant in any way.
The second factor does not support waiver because the information was
not obtained so long ago as to make the privilege futile. Likewise, the third
factor does not support waiver because the child’s attorney placed limits on
the scope of the expert’s discussion with the court investigator that constituted
a reasonable attempt to ensure that the information was not disclosed.
Finally, the Appellant’s attorney has not established any facts that suggest the
child’s attorney was grossly negligent.
B. The expert’s statements to the Appellant’s counsel did not
waive the work product doctrine.
The Appellant incorrectly argues that the lawyer’s consent to the
expert’s conversation with the Appellant’s attorney constituted disclosure to an
adversary, which makes the waiver absolute. Although the record is unclear
on the scope of the lawyer’s consent, the lawyer’s statement that he
consented for the expert to speak to opposing counsel as a “courtesy”
strongly suggests that the disclosure was intended to be for the same purpose
as that authorized to the investigator, namely the revelation of background
Considering her earlier conduct in her discussion with the investigator, it
is more likely than not that the expert exceeded the scope of her authority to
discuss only background facts by disclosing her opinions to opposing counsel.
Therefore, the fact that the Appellant’s attorney obtained the information does
not waive the privilege because the expert was not authorized to disclose the
information to the attorney. Under these circumstances, there was no
voluntary disclosure by the attorney. See, e.g., Rockwell Int’l Corp. v. U.S.
Dep’t of Justice, 235 F.3d 598 (D.C. Cir. 2001).
Finally, when the parties do not have a “common interest,” waiver is
more likely, but there still must be an intention that the opposing party obtain
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the work product. Gundacker v. Unisys Corp., 151 F.3d 842 (8th Cir. 1998)
(emphasis added). There is no evidence suggesting that the child’s attorney
intended for the expert to reveal her opinions to the Appellant’s counsel.
Therefore, the Appellant has not established the requisite intent to establish
III. Public policy supports preservation of the work product doctrine
in this and other termination proceedings.
Privileges and protections created by our courts and legislative bodies,
such as the work product exemption from discovery, have increased
significance in termination and adoption proceedings because of the severity
of the consequences of waiver. Mistakes by experts, particularly non-attorney
experts, who divulge confidential information without the consent of the hiring
attorney should not waive privileges that protect a child’s physical and
emotional welfare, and potentially the child’s life. A child should not be
sacrificed because of an expert’s negligent violation of discovery rules.
The attorney-client privilege and attorney work product doctrine do not
provide a blanket exception to their confidentiality provisions whenever a party
claims waiver. Read as a whole, the protection afforded by the attorney-client
privilege and attorney work product doctrine statute reflect the conscious
decision to foster a candid exchange between the psychology professional
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and the child. By weakening the confidentiality promised by these medical
professionals—and reasonably expected by the children being interviewed—
the resulting chilling effect would eliminate the free, frank exchange needed
for effective analysis.
While there unquestionably is friction between an attorney’s waiver of
the privilege and the protections needed to guarantee the effectiveness of the
psychological analysis performed by an expert, the confidentiality of the child’s
communications is paramount. Although a parent or other party may argue
that this result forecloses some avenues to the discovery of such
communications, the complaining party nevertheless may still hire their own
expert to conduct interviews with the child—which is precisely what happened
in this case because the father hired several experts to advocate his position.
IV. In any event, the trial court’s decision should not be overturned
because it is supported by the evidence.
The Father’s Domestic Violence History
The Child’s father has a pattern of abusive conduct, and the relationship
between him and the Child’s mother was an abusive one marked by physical
and emotional violence. (Attorney General Brief at 4.) A Department social
worker reported that in at least one incident the Father hit the Mother, was
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arrested for assault and battery, and was incarcerated. (Attorney General
Brief at 4-5.)
During another incident in January, 1997, the Father and Mother fought
about the Child’s sibling in the middle of the night while the sibling was ill and
vomiting. Id. The Father restrained the Mother, who was approximately nine
months pregnant with the Child at the time, by placing a pillow over her face.
Id. Following this incident, the Mother sought and was granted a restraining
order against the Father. Id. Nevertheless, two weeks after the Child was
born, the Mother and Father fought again. (Attorney General Brief at 5-6.)
The Department’s Service Plans for the Father
After placing the children in foster care, the Department attempted to
reunite the family. Id. However, before reunification could occur, the
Department required the Father to continue counseling at Home Base to learn
parenting skills, enter anger management therapy at Emerge, participate in
parenting evaluation services, and begin individual therapy. Id. The Father
repeatedly tried to obtain the phone number of the Department evaluator who
identified him as being a batterer, and even attempted to deceive a social
worker in order to obtain the number. (Appellee’s Brief at 9.)
The Father resisted attending the Emerge program because he did not
believe that he had a domestic violence problem. (Attorney General Brief at
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6-7.) However, following an incident on August 19, 1997, the Father again
was arrested for domestic violence and was charged with assault and battery.
(Attorney General Brief at 7.) Following his arrest, the Father entered
Emerge, but continued to deny his domestic violence problems. Id. Emerge
terminated him from the program as a result of that denial. Id. The Father
never completed the program. Id.
The Father’s Relations with the Department
At a supervised visit with the Child on July 10, 1997, the Father raised
his voice at the supervisor while he was holding the Child crying and
screaming in his arms. (Attorney General Brief at 8.) At a meeting on
December 27, 1997, the Father was verbally hostile towards [the supervisor]
because of the Department’s denial of his request for unsupervised visits with
the Child. Id.
The Father did not interact any better with a social worker assigned to
the case from May, 1998 to March, 1999. Id. She testified to a hostile
relationship between the Father and the Department. Id. The Father
complained about the Department’s requirement that he improve his parenting
skills. Id. He spent time during his visits with the child voicing his displeasure
to [the social worker] rather than being attentive to the Child. Id. At one
meeting, when [the social worker] discussed the tasks in the service plan with
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which he apparently disagreed, the Father interrupted her and pointed his
finger in her face. (Attorney General Brief at 8-9.)
A confrontation occurred during the last ten minutes of a visit at the
Department’s office on July 28, 1999, after [the social worker] asked the
Father to clean up the visiting room. (Attorney General Brief at 9.) The
Father questioned why he had to clean up when he had not done so at the
previous visit. Id. [The social worker] explained that she forgot to ask him to
clean up the last time and that the rule was to keep the visiting room clean.
Id. She also pointed to a sign in the room that stated the rule. Id. While he
was still holding the Child in his arms, the Father walked over to where [the
social worker] was sitting, stood over her, told her that she was being rude
and arrogant, and asked to speak to her supervisor. Id. [The social worker]
complied and asked her supervisor to speak to him. Id. Later, when [the
social worker] was leaving the Department to return the Child to the foster
family, the Father approached her in the parking lot and expressed further
discontent with the Department. (Attorney General Brief at 9-10.)
Professional Evaluations of the Father
The Department referred the Father to [a doctor] for a clinical evaluation
to determine generally whether he was physically abusive, whether his
violence could pose a danger to the Child, and whether he had the capacity to
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parent. (Attorney General Brief at 10.) [The doctor] found that the Father had
borderline paranoia and narcissistic features, that the Father was extremely
defensive and had the tendency to blame others for his problems. (Attorney
General Brief at 10-11.) He also found that the Father had highly volatile and
superficial attachments and that he was focused on self-gratification.
(Attorney General Brief at 11.) [The doctor] concluded that the Father is
physically abusive and controlling and may be limited by these characteristics
in his capacity to nurture the Child and tolerate frustration in parenting. Id.
The Father hired [two doctors] to evaluate him. Both professionals
found that the Father had anger management problems. (Attorney General
Brief at 12.) They each found that the Father needed to be in therapy in order
to address personal relationship problems and anger management issues. Id.
[One of the doctors] also stated that the Department had valid concerns about
conflicts between the Father and social workers. Id. Both doctors were
concerned about the renewed relationship between the Father and Mother.
The Special Needs Child
The Child has numerous physical and emotional problems that require
on-going special care. The Child was born with serious digestive problems
and has suffered feeding difficulties from birth. (Appellee’s Brief at 4.) She
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requires a restricted diet and a special feeding schedule, including specially
prepared foods. She must be closely supervised to assure that she does not
eat food that will make her sick. Id.
The Child has problems with slow head growth and marks on her
cheeks. Id. She also has severe eczema and speech delays. Id. Because of
the Child’s eczema condition, she must be bathed using only certain soaps
and detergents, and various medicated creams must be applied to her skin in
a particular manner. (Appellee’s Brief at 5.) She must be closely supervised
during her daily tar bath. Id. The eczema often requires care late at night. Id.
Despite improvements the Child has made, she demands a great deal
of adult attention and accommodation. Id. She had 36 medical visits between
August 1998 and October 1999. Id. She requires two to four medical visits
every month. Id. The Father’s involvement in the Child’s medical
appointments primarily includes a few phone calls and cancelled
The Child has difficulty with transitions and adjusting to other people.
Id. The foster family is unable to use their close relatives as caretakers
because of this difficulty. Id. The Child has lived in the foster home for most
of her life and is thriving. (Appellee’s Brief at 6.) She has bonded with her
foster/preadoptive parents and the other children in the home. Id.
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The Father and the Child’s Special Needs
The Father exhibited a lack of understanding of the Child’s special and
demanding needs. (Appellee’s Brief at 6-7.) He equated the Child’s medical
needs with the much different and less serious ones of his other daughter.
(Appellee’s Brief at 7.) He believed he could handle the Child’s varied and
complex medical needs because he had successfully handled the simpler and
shorter-term needs of his older daughter, of whom he does not have primary
For example, the Father did not follow the Department’s instruction
regarding the Child’s specific food requirements when she was an infant. Id.
He also deviated from the Child’s feeding schedule. Id. The Father brought
the wrong foods to a visit with the Child and later lied about providing the child
with that food. Id. He continued to lie after he was confronted, but later
conceded his mistake. Id.
The Father’s failure to attend many of his daughter’s medical
appointments also demonstrates and may explain his lack of appreciation for
her special needs. (Appellee’s Brief at 8.) He did not attend medical
appointments early in the Child’s life. Id. He later had token involvement with
medical providers that mostly encompassed phone calls. Id.
The Mother and the Child
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The Mother lost interest in the Child. (Attorney General Brief at 23.)
She stopped visiting the Child in about February or March, 1998. Id. The trial
court made a finding that the Mother has abandoned the Child, and the
Mother has not appealed that finding. Id.
The child’s experts statements to the court investigator are privileged
under the work product doctrine and were properly excluded by the trial court.
The evidence supports the trial court’s decision. Therefore, the trial court’s
decision should be affirmed.
HAYNES AND BOONE, LLP
Alene Ross Levy
State Bar No. 12260550
State Bar No. 24027466
State Bar No. 24027021
1000 Louisiana Street,
Houston, Texas 77002-5012
Telephone: (713) 547-2000
Telecopier: (713) 547-2600
Attorneys for Amicus Curiae
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the
Brief of Amicus Curiae was sent to the following counsel of record by certified
mail, return receipt requested, on this 17th day of August, 2001:
Mr. David A.F. Lewis Mr. Robert L. Quinan, Jr.
ATTORNEY AT LAW Department of Social Services
Post Office Box 216 OFFICE OF ATTORNEY GENERAL
State House One Ashburton Place, Room 2019
Boston, MA 02133 Boston, MA 02108
Mr. Michael F. Kilkelly
KILKELLY LAW OFFICES
Attorneys At Law
90 Salem Street
Malden, MA 02148
Alene Ross Levy
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