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   Commonwealth of Massachusetts
      Supreme Judicial Court
                                [redacted] County

                                  No. SJC-8547

                           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


     Justice for Children respectfully files this Brief of Amicus Curiae.

                        PRELIMINARY STATEMENT

     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.


      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
      nontestifying expert.”

Supreme Judicial Court for the Commonwealth Announcement, SJC-08547.

                       ARGUMENT AND AUTHORITIES

I.    The work product doctrine applies to the opinions of a non-

testifying expert.

      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

at 775.

      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


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

                                      - 11 -
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

                                      - 12 -
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

                                      - 13 -
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

                                      - 14 -
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

                                      - 15 -
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

                                       - 16 -
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

appointments. Id.

       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.

                                        - 17 -
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

custody. Id.

      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

                                      - 18 -
      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.

                                    Respectfully submitted,

                                    HAYNES AND BOONE, LLP

                                    Alene Ross Levy
                                    State Bar No. 12260550
                                    Mercy Lowe
                                    State Bar No. 24027466
                                    Elsa Itz
                                    State Bar No. 24027021
                                    1000 Louisiana Street,
                                    Suite 4300
                                    Houston, Texas 77002-5012
                                    Telephone: (713) 547-2000
                                    Telecopier: (713) 547-2600

                                    Attorneys for Amicus Curiae

                                    - 19 -
                           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
        Attorneys At Law
        90 Salem Street
        Malden, MA 02148

                                    Alene Ross Levy

                                     - 20 -

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