Opinion
UNIFIED CRIMINAL DOCKET No. CR-15-1373
07-31-2015
STATE OF MAINE v. JON CIANCHETTE, Defendant
STATE OF MAINE
CUMBERLAND, ss. ORDER
Defendant has moved under Rule 17(d) for the production from Spring Harbor and from David Hodgkins, LCSW of certain records that may be privileged. The proposed subpoenas attached to defendant's motion states that there are attachments listing the specific records that are sought but the attachments have not been included with the proposed subpoenas filed with the court.
Where only records are sought rather than testimony, M.R.Crim.P. 18(f) may be applicable rather than Rule 17(d), but there is no material difference in the procedure involved.
The proposed subpoenas also call for production at the offices of defendants' attorney instead of at the court for in camera inspection. Since there is no dispute that some or all of the records sought may be privileged, any records that are sought must be submitted for in camera inspection by the court before any disclosure to counsel. Moreover, the Law Court has held that subpoenas for counseling records that are sought solely because of the possibility that those records may contain impeachment material may be quashed without in camera review. State v. Watson, 1999 ME 41 ¶ 7, 726 A.2d 214. See State v. Dube, 2014 ME 43 ¶ 8, 87 A.3d 1219 (party seeking subpoena must show that subpoena is not a fishing expedition); State v. Marroquin-Aldana, 2014 ME 47 ¶ 34, 89 A.3d 519 (purpose of subpoena is not to expand the discovery rights of the parties).
Accordingly, the motion is denied without prejudice to resubmission with proposed subpoenas that (1) include the relevant attachments and (2) call for production at the court for possible in camera inspection. The court understands that there are other hearings scheduled for August 4 in this case. Another hearing date will have to be set for the motion in limine to allow a new proposed court order to be submitted and for proper subpoenas to be issued and for argument as to whether in camera review is called for or whether the subpoenas should be quashed under Watson.
If in camera review is ordered, the court will request the positions of the parties with respect to the determination of what material is privileged and what is non-privileged and whether and under what circumstances privileged material can be disclosed. M.R.Evid. 503 does not appear to contain any exception applicable to this situation. --------
As the court understands it, the party requesting a subpoena must also provide notice to the person whose records are at issue. Unless that person expressly waives privilege, waiver will not be presumed but that person has a right to be heard if he or she wishes. Dated: July 31, 2015
/s/_________
Thomas D. Warren
Justice, Superior Court