Massachusetts Adopts Judicial Deliberative Privilege. Which State is Next?

The Supreme Judicial Court of Massachusetts recently ruled what many lawyers and judges assume—that a judicial deliberative privilege exists and protects from compelled disclosure a judge’s deliberative processes and related communications.  With a dearth of federal and state law on the issue, this case may serve as a catalyst for other states to recognize the privilege either through common law or legislative development.  See In the Matter of Enforcement of a Subpoena, 972 N.E.2d 1022 (Mass. 2012).


Suffolk County District Attorney Daniel F. Conley, the chief law enforcement officer for Boston, filed a complaint with the Massachusetts Commission on Judicial Conduct alleging that a Boston Municipal Judge had repeatedly shown bias against the Commonwealth.  The Boston Globe later published articles and editorials about the so-called “let me go” judge and the investigation into his allegedly lenient rulings in criminal proceedings.

As part of the Commission’s investigation, the judge was subpoenaed to a deposition and requested to bring “any notes, notebooks, bench  books, diaries, memoranda, recordation or other written recollections of cases” described in DA Conley’s Complaint. Conley conceded that he sought information regarding the judge’s processes, methodology, and conduct in adjudicating cases before him because it is notoriously elusive and difficult to prove bias.

The judge objected, arguing that a judicial deliberative privilege protects the judge’s deliberative information from compelled disclosure.  No previous Massachusetts court had ruled on the privilege’s existence.


The Supreme Judicial Court formally recognized a judicial deliberative privilege that guards against intrusions into a judge’s deliberative processes.  Although no express Massachusetts authority supported the privilege, the Court ruled that the privilege is deeply rooted in Massachusetts common law and constitutional jurisprudence and in the precedents of the U.S. Supreme Court and the courts of its sister States. In fact, no court to consider a judicial deliberative privilege has rejected it.

The Court ruled that the judicial deliberative privilege is necessary to ensure the finality of judgments, to protect the quality and integrity of judicial decision-making, and to ensure an independent and impartial judiciary.

The judicial deliberative privilege covers a judge’s mental impressions and thought processes in reaching a judicial decision, and protects confidential communications among judges and between judges and their law clerks and other court staff made in the course of and related to their deliberative processes in particular cases.

The privilege does not cover a judge’s memory of nondeliberative events in connection with a particular case, inquiries into whether a judge was subjected to extraneous influences or ex parte communications, or when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding.

Massachusetts Privilege Differs with Federal Common Law

The Massachusetts court departed from federal common law by ruling that the judicial deliberative privilege is absolute, meaning that a party may not overcome the privilege upon a sufficient showing of need.  The 11th Circuit Court of Appeals has ruled that the federal privilege is qualified. The privilege will give way when party seeking the information shows that the importance of the information, its relevance to the particular proceeding, and a difficulty in obtaining the information through alternative means.

Upon this showing, the court must balance the party’s need for the information against the degree of intrusion upon the confidentiality of the privileged communications. See Williams v. Mercer, 783 F.2d 1488, 1521–22 (CA7 1983).

Other States

Massachusetts now joins Illinois, West Virginia, and Pennsylvania in recognizing a judicial deliberative privilege.  See Thomas v. Page, 837 N.E.2d 483 (Ill. App. Ct. 2005); Kaufman v. Zakaib, 535 S.E.2d 727 (W. Va. 2000); and Leber v. Stretton, 928 A.2d 262 (Pa. Super. 2007).

And a Connecticut Court of Appeals recently upheld, without elaboration but citing the Massachusetts’ opinion, a trial court’s refusal to allow a judge to be cross-examined about this decision-making process.  See Kosiorek v. Smigelski, 138 Conn. App. 695, 2012 WL 4872756 (Conn. Ct. App. Oct. 23, 2012).

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