Commonwealth v. Fremont Investment & Loan
459 Mass. 209
| Mass. | 2011Background
- Lieberman seeks access under G. L. c. 66, § 10 to documents Fremont produced in an AG enforcement action, subject to a protective order.
- Protective order defined Confidential Materials as items entitled to confidential treatment under Mass. Rules of Civil Procedure and designated confidential by Fremont.
- After settlement, Lieberman requested documents; Commonwealth refused disclosure of Fremont-designated confidential materials.
- Lieberman brought a public records action challenging the protective order; enforcement action judge issued a protective order and later denied Lieberman intervention.
- Public records action judge dismissed Lieberman’s challenge; enforcement action judge denied intervention, which Lieberman appeals; the court vacates the intervention denial and affirms the records ruling on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the public records law abrogate protective orders? | Lieberman asserts disclosure is mandated for records under the public records law. | Commonwealth argues the public records law does not override inherent judicial power to issue protective orders. | Public records law does not abrogate protective orders. |
| Intervention as of right in the enforcement action | Lieberman seeks intervention as of right to challenge the protective order and obtain records. | No unconditional right to intervene; Lieberman has no interest in the property or transaction at issue. | Intervention as of right denied. |
| Permissive intervention to challenge a protective order | Permissive intervention may allow Lieberman to challenge the protective order. | Discretionary and not guaranteed; must consider factors like delay, prejudice, and representation. | Permissive intervention may be warranted; remand for further consideration consistent with the opinion. |
| Impact of inherent judicial powers on protective orders and public records | Judicial powers may be constrained by the public records law. | Judicial powers, including protective orders, are preserved; statute silent on this point. | Judicial protective orders remain valid; statute silent on abrogation. |
Key Cases Cited
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (U.S. 1984) (protective orders under inherent judicial powers)
- Suffolk Constr. Co. v. Division of Capital Asset Mgmt., 449 Mass. 444 (Mass. 2007) (public records law not abrogating longstanding common-law privileges)
- General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798 (Mass. 1999) (work product privilege and disclosure under public records law)
- Doe v. Sex Offender Registry Bd., 452 Mass. 764 (Mass. 2008) (interpretation of statutory provisions and constitutional considerations)
- Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. School Comm. of Chelsea, 409 Mass. 203 (Mass. 1991) (intervention standards and criteria)
- Brockton Agric. Soc'y v. Brockton School Comm., 390 Mass. 431 (Mass. 1983) (intervention discretion and considerations)