Brief filed: 05/04/2020
Attorney General Maura Healey v. Facebook, Inc.
Supreme Judicial Court of Massachusetts; Case No. DAR-27419
Decision below Suffolk Superior Court No. 1984CV02597
This Court should grant direct appellate review in this case because the public interest in preserving work product protection and attorney-client privilege is of such importance that justice requires a final determination by this Court. In compelling Facebook to produce information generated in the course of an attorney-led investigation, the Superior Court failed to properly apply the work product and attorney-client privilege protections that attached to those materials. The work product doctrine protects from disclosure information generated in the course of an attorney-led investigation that is conducted “because of” anticipated litigation, and an attorney’s sorting of information during a privileged investigation cannot be discoverable by his adversary. And the attorney-client privilege protects confidential communications between lawyers and their clients even if the client publicly discloses the existence of an attorney-led investigation. In rejecting these principles, the Superior Court created dangerous uncertainty in the attorney-client relationship.
David Vicinanzo, Mark Tyler Knights, Hannah Bornstein, and Charles Dell’Anno., Nixon Peabody LLP, Boston, MA; Marissa Elkins, Elkins, Auer, Rudof & Schiff, LLC/NACDL, Northampton, MA.