Attorney General Maura Healey v. Facebook, Inc.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent-Appellant Facebook.

Brief filed: 05/04/2020


Attorney General Maura Healey v. Facebook, Inc.

Supreme Judicial Court of Massachusetts; Case No. DAR-27419

Prior Decision

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.

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