COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
Hampden, ss.

_______________________________
)
COMMONWEALTH
)
)
v.
)
)
ROLANDO PENATE
)
)
_______________________________)

No. HDCR2012-00083

MOTION TO QUASH SUBPOENA FOR AAG ANNE KACZMAREK

The Massachusetts Attorney General’s Office (AGO), hereby moves to quash the
subpoena requiring AAG Anne Kaczmarek to appear at an evidentiary hearing in the aboveentitled matter. As grounds therefor, the AGO states that the defendant seeks information on
matters that are either confidential, privileged and exempt from disclosure, or cumulative of
information of which the defendant already has possession. In support of this motion, the AGO
has attached a memorandum of law.
WHEREFORE, for the foregoing reasons, the AGO requests that this Court quash the
subpoena.
Respectfully submitted
For the Attorney General,
MARTHA COAKLEY
____________________
Kris C. Foster
Assistant Attorney General
Criminal Bureau
One Ashburton Place

 Boston, Massachusetts 02108
(617) 727-2200, ext. 2833
BBO # 672376

Dated: October 1, 2013

CERTIFICATE OF SERVICE

I hereby certify that I served a copy of the Motion to Quash Subpoena upon the defendant
and his counsel in hand on this date.

________________________
Kris C. Foster
Assistant Attorney General
Date: October 1, 2013

2

 COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT

Hampden, ss.

_______________________________
)
COMMONWEALTH
)
)
v.
)
)
ROLANDO PENATE
)
)
_______________________________)

No. HDCR2012-00083

MEMORANDUM OF LAW IN SUPPORT OF ATTORNEY
GENERAL’S MOTION TO QUASH SUMMONS SERVED ON
ASSISTANT ATTORNEY GENERAL ANNE KACZMAREK
This memorandum of law is submitted by the Massachusetts Attorney General’s Office
(AGO), in support of its motion to quash the summons served on Assistant Attorney General
Anne Kaczmarek in the above-captioned matter. This Court should quash the summons because
the testimony and documents sought relate to the AGO’s ongoing criminal investigation of Sonja
Farak. As argued below, such information is privileged or otherwise protected from disclosure
and no exception or waiver applies. In the alternative, the AGO requests that this Court enter an
appropriate protective order to prevent the unwarranted disclosure of privileged or otherwise
protected information.
BACKGROUND
On February 1, 2012, a Hampden County grand jury returned indictments against the
defendant, Rolando Penate, charging him with three counts of possession with intent to distribute
a class A substance, in violation of G.l. c. 94C, § 32A(d), as a subsequent offense, G.L. c. 94C,

3

 § 32(b), and with related school zone violations, G.L. c. 94C, § 32J; two counts of unlawful
possession of a firearm, in violation of G.L. c. 269, § 10(h); and use of a firearm while
committing a felony, in violation of G.L. c. 265, § 18B.
The drugs in the defendant’s case appear to have been tested by Sonja Farak. Farak is
currently charged with four counts of evidence tampering, four counts of larceny of drugs and
two count of possession of cocaine allegedly arising out of her work at the University of
Massachusetts Amherst drug laboratory in her capacity as a chemist. AAG Anne Kaczmarek is
assigned to prosecute the Commonwealth’s case against Farak.
On August 22, 2013, AAG Kaczmarek was served with a subpoena compelling her
testimony on August 27, 2013, and the production of documents related to her investigation of
Farak. On August 27, the Court rescheduled the evidentiary hearing in this case to September 23,
2013, with a hearing on, inter alia, the subpoena issued for AAG Kaczmarek’s testimony and
production of documents, scheduled for September 19, 2013.
ARGUMENT
The defendant is seeking documents and testimony from AAG Kaczmarek. As an initial
matter, several of the documents the defendant is seeking from AAG Kaczmarek are not in her
care, custody or control. This includes (1) evidence of an accomplice or third party knowledge;
and (2) handwriting analysis. Furthermore, the defendant already has possession of copies of the
news accounts with handwritten notes recovered from Farak’s car. 1 The remaining documents
the defendant is requesting, in addition to AAG Kaczmarek’s testimony, should be quashed for
the following reasons.

1

Additionally, the defendant likely has already reviewed the grand jury minutes, exhibits, and
police reports, which document the access to the Amherst evidence locker.
4

 I.

This Court should quash the summons because documents and information
regarding the ongoing criminal investigation of Sonja Farak are privileged and
otherwise protected from disclosure.
Courts have found information maintained by law enforcement regarding an ongoing

criminal investigation to be privileged and not subject to disclosure. See Kattar v. Doe, CIV. A.
86-2206-MC, 1987 WL 11146 (D. Mass. Jan. 27, 1987) (granting in part a motion to quash
subpoenas for a deposition that would require disclosure of information related to an active
investigation and a deposition that would require disclosure of information protected by the law
enforcement investigatory privilege); see also Puerto Rico v. United States, 490 F.3d 50, 64 (1st
Cir. 2007), cert. denied., 552 U.S. 1295 (2008) (recognizing a privilege for “law enforcement
techniques and procedures”). “The purpose of this privilege is to prevent disclosure of law
enforcement techniques and procedures, to preserve the confidentiality of sources, to protect
witness and law enforcement personnel, to safeguard the privacy of individuals involved in an
investigation, and otherwise to prevent interference with an investigation.” In re Dept. of
Investigation, 856 F.2d 481, 483-84 (2d Cir. 1988).
Similar principles can be found in various areas of Massachusetts law. As an example,
the public records laws exempt from disclosure “investigatory materials necessarily compiled out
of the public view by law enforcement or other investigatory officials, the disclosure of which
materials would probably so prejudice the possibility of effective law enforcement that such
disclosure would not be in the public interest.” M.G.L. c. 4, § 7, cl. 26(f).

This exemption

recognizes that the disclosure of certain investigatory materials “could so detract from effective
law enforcement to such a degree as to operate in derogation, and not in support of, the public
interest.” Bougas v. Chief of Police of Lexington, 371 Mass. 59, 61-63 (1976) (holding that
police reports and letters from citizens to police were exempt from disclosure). Even if not
directly applicable here, the exemption “provides guidance as to public policy considerations.”
5

 Sheriff of Bristol County v. Labor Relations Comm’n, 62 Mass. App. Ct. 665, 671 (2004); see
also Babets v. Secretary of Executive Office of Human Servs., 403 Mass. 230, 237 n.8 (1988)
(finding that terms of public records law may offer some evidence of Legislature’s attitude on
issues of evidentiary privileges); Puerto Rico, 490 F.3d at 63 (noting that the law enforcement
exemption in the federal Freedom of Information Act provides guidance in determining the
scope of the investigative privilege). There are other examples. See, e.g., In re Enforcement of a
Subpoena, 463 Mass. 162, 177 n.8 (2012) (listing “impounded filings regarding ongoing criminal
investigations” as a type of document that “at least temporarily” can be shielded from public);
The Massachusetts Guide to Evidence, Art. V, § 515 (“Unless otherwise required by law,
information given to governmental authorities in order to secure the enforcement of the law is
subject to disclosure only within the discretion of the governmental authority.”).
The law enforcement investigative privilege is a qualified privilege, which is “subject to
balancing the [government’s] interest in preserving the confidentiality of sensitive law
enforcement techniques against the requesting party’s interest in disclosure.” Puerto Rico, 490
F.3d at 64.

To override the strong public interest in maintaining the confidentiality of

information related to an active criminal investigation, a party must generally show a compelling
need for the information that is sufficient to overcome the privilege. See Gomez v. City of
Nashua, 126 F.R.D. 432, 436 (D.N.H. 1989) (granting motion to quash deposition of an assistant
attorney general based on the law enforcement investigative privilege, the deliberative process
privilege, and the principle that absent a compelling need, the time and energy of public officials
ought to be preserved for public business); see also Ass'n for Reduction of Violence v. Hall, 734
F.2d 63, 66 (1st Cir. 1984) (a party seeking discovery of privileged material “must make a

6

 threshold showing of need, amounting to more than ‘mere speculation’”) (quoting Socialist
Workers Party v. Attorney General, 565 F.2d 19, 23 (2d Cir. 1977)).
Here, the interests of the requesting party include his rights under the U.S. Constitution
and the Massachusetts Declaration of Rights to present a complete defense and to utilize
compulsory process to secure the presence of witnesses on his behalf. See, e.g., Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (federal Constitution “guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’”) (quoting California v. Trombetta, 467
U.S. 479, 485 (1984)); Washington v. Texas, 388 U.S. 14 (1967) (“The right to offer testimony
of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a
defense.”).
However, the constitutional right of a defendant to present a complete defense “is not
unlimited, but rather is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S.
303, 308 (1998); see also Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (finding right to
present relevant testimony “may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process”). “As a result, state and federal rulemakers have broad
latitude under the Constitution to establish rules excluding evidence from criminal trials. Such
rules do not abridge an accused’s right to present a defense so long as they are not ‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve.’”

Scheffer, 523 U.S. at 308

(quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).
In determining whether to quash the instant summons, therefore, this Court must weigh
the interests of the defendant in presenting documents and testimony from AAG Anne
Kaczmarek against the interests of the public and the Attorney General in maintaining the
confidentiality of information regarding an ongoing criminal investigation. To the extent the

7

 defendant asserts a constitutional right to elicit from AAG Anne Kaczmarek privileged
information regarding the Farak investigation, the defendant “must at least make some plausible
showing of how [the evidence] would [be] both material and favorable to his defense.” U.S. v.
Valenzuela-Bernal, 458 U.S. 858 (1982). The defendant has not done so here.
Here, AAG Anne Kaczmarek does not have first-hand knowledge of the facts and events
described in the documents requested by the defendant. Therefore, any information she possibly
has would consist largely of inadmissible hearsay. To the extent the defendant is able to
demonstrate an exception to the hearsay rule for certain proffered testimony, he must
demonstrate a necessity for offering that testimony through AAG Anne Kaczmarek that
outweighs the concerns underlying the investigative privilege. He cannot do so. Testimony by a
witness far removed from events at issue where the witness at most has indirect second-hand
knowledge cannot suffice.

In addition, to the extent any such testimony or production of

documents is permitted, the AGO requests that the Court define clear limits in advance to avoid
any unwarranted disclosure of privileged information regarding the ongoing criminal
investigation of Sonja Farak
II.

The AGO did not waive any privilege by the district attorney or AGO releasing
selected information to defense counsel or to the public.
Defense counsel may not obtain AAG Kaczmarek’s testimony or compel her to produce

documents based upon a theory that the AGO has waived any claim of privilege by releasing
certain information to defense counsel or to the public. This argument has been soundly rejected
by courts. See Puerto Rico, 490 F.3d at 66 (holding that federal government did not waive law
enforcement privilege by disclosing some information about an investigation in a “detailed, two
hundred page report”). As the First Circuit observed in Puerto Rico v. United States, “[c]ourts
have held in the context of executive privilege that ‘release of a document only waives these
8

 privileges for the document or information specifically released, and not for related materials.’”
Id. (quoting In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997)). “This limited approach to
waiver serves important interests in open government by ‘ensur[ing] that agencies do not forego
voluntarily disclosing some privileged material out of the fear that by doing so they are exposing
other, more sensitive documents.’” Id. Here, by voluntarily disclosing some information about
the investigation to defense counsel and to the public, the AGO did not waive its privilege with
respect to any documents or information beyond those reports. To hold otherwise would be to
chill law enforcement officials from releasing any information to the public while an
investigation is ongoing. “It would be illogical to punish [the AGO and other law enforcement
agencies] for [their] voluntary disclosure of these materials by also forcing them to disclose other
information that [they] have deemed privileged.” Id. at 67. Accordingly, the subpoena served
upon AAG Kaczmarek should be quashed.
III.

The defendant seeks testimony and documents that either could be obtained
from other sources or is irrelevant, and that would needlessly cause a
prosecutor’s time and resources to be diverted away from important public
duties.
The testimony the defendant apparently seeks from AAG Anne Kaczmarek either could

be obtained from other sources or is irrelevant. The drugs in the defendant’s case were seized in
October and November of 2011. It appears that the defendant is going to argue that Farak may
have tampered with the drugs in his case, by attempting to elicit from AAG Kaczmarek that the
allegations against Farak date back much further than the roughly four months before Farak’s
arrest that the AGO alleges. This is merely a fishing expedition. There is nothing to indicate
that the allegations against Farak date back to the time she tested the drugs in the defendant’s
case. Therefore, her testimony would be irrelevant and unhelpful to the Court.

9

 Quashing the subpoena would be especially warranted considering that compliance
would cause AAG Kaczmarek’s time and resources to be diverted away from important public
duties.

Indeed, one court that confronted this same combination of circumstances when a

prosecutor was subpoenaed to provide deposition testimony – that is, the facts that the party
could obtain evidence from other sources, that the prosecutor’s thinking was not relevant, and
that the prosecutor’s time would be diverted away from public service – reasoned as follows:
Although the information gathered by the [prosecutor’s office] is relevant
to plaintiff’s action, the information may be obtained by less onerous
means than taking the deposition of [the prosecutor]. Documentary
evidence in the investigative file would reveal the information uncovered.
Plaintiff may also depose any witnesses to the incident to discover their
recollection of the events in question. Plaintiff states he is most interested
in [one witness’s] statement to the [prosecutor’s office] because it formed
the basis of the decision not to prosecute. But again, the [prosecutor’s]
decision whether to prosecute is not relevant to the instant action; it is [the
witness’s] recollection of events which is important. Plaintiff may
discover this information by deposing [the witness]. Courts generally
refuse to compel the deposition of a government witness if the plaintiff
may obtain discovery by an alternative and less burdensome method to the
government.
The [prosecutor’s office] performs numerous investigations into purported
criminal conduct as a part of its public function. Subjecting employees of
that office to deposition absent the showing of a compelling need would
violate public policy concerns that the time and resources of that office be
conserved for the public business. Plaintiff has not established such a
compelling need in this case.
Gomez v. City of Nashua, 126 F.R.D. 432, 434-36 (D.N.H. 1989) (additionally finding the
federal deliberative process privilege relevant, which privilege is based on the policy that “‘the
time and energies of public officials be conserved for the public’s business to as great an extent
as may be consistent with the ends of justice in particular cases [and a] failure to place
reasonable limits upon private litigants’ access to responsible governmental officials as sources
of routine pretrial discovery would result in a severe disruption of the government’s primary

10

 function’” (quoting Community Fed. Savings & Loan Ass’n v. Federal Home Loan Bank, 96
F.R.D. 619, 621 (D.D.C. 1983))); see also Church of Scientology v. IRS, 138 F.R.D. 9, 12-13 (D.
Mass. 1990) (Bowler, Mag. J.) (discussing rule generally precluding depositions of high
government officials, which is based on “[t]he rationale . . . that such officials must be free to
conduct their jobs without the constant interference of the discovery process,” and which may be
overcome only “upon a showing that the information to be gained from such a deposition is not
available through any other source”). These realities justify quashing the subpoena here.
IV.

AAG Kaczmarek would be protected from testifying as to her work product or
any communications made to secure the enforcement of law under recognized
legal doctrines.
Added to the above, certain lines of questioning would not be allowable should the

defendant attempt to pursue them. First, AAG Kaczmarek would be protected from having to
testify or producing documents regarding her thought processes in litigating any action, under the
attorney work product doctrine. See, e.g., Commonwealth v. Paszko, 391 Mass. 164, 187-88
(1984) (noting that core of work product doctrine is protection of attorney mental processes);
Commonwealth v. Lewinski, 367 Mass. 889, 902 (1975) (recognizing that defendant would not
be entitled to access work product of prosecutor within documents); Hickman v. Taylor, 329 U.S.
495, 509-14 (1947) (explaining that doctrine in part protects against “inquiries into” “mental
impressions of an attorney,” “personal beliefs,” and other “intangible” matters, in part due to the
chilling effect on attorney work that could be produced by the mere fear of disclosure);
Commonwealth v. Bing Sial Liang, 434 Mass. 131, 137-38 (2001), citing Hickman v. Taylor, 329
U.S. 495, 511 (1947) (“Proper preparation of a . . . case demands that prosecutors assemble
information, sift what they consider to be the relevant from the irrelevant facts, prepare their
legal theories and plan their strategy without undue and needless interference. . . . This work is

11

 reflected . . . in interviews, statements, memoranda, correspondence, briefs, mental impressions,
and personal beliefs”).
Second, AAG Kaczmarek would be shielded from having to testify or producing
documents regarding communications made by citizens to secure the enforcement of law, under
an absolute privilege held by the government. It has long been accepted in the Commonwealth
that:
“It is the duty of every citizen to communicate to his government any
information which he has of the commission of an offense against its laws.
To encourage him in performing this duty without fear of consequences,
the law holds such information to be among the secrets of state, and leaves
the question how far and under what circumstances the names of the
informers and the channel of communication shall be suffered to be
known, to the absolute discretion of the government, to be exercised
according to its views of what the interests of the public require. Courts of
justice therefore will not compel or allow the discovery of such
information, either by the subordinate officer to whom it is given, by the
informer himself or by any other person, without the permission of the
government. The evidence is excluded, not for the protection of the
witness or the party in the particular case, but upon general grounds of
public policy, because of the confidential nature of such communications.”
Attorney Gen. v. Tufts, 239 Mass. 458, 490-91 (1921) (quoting Worthington v. Scribner, 109
Mass. 487, 488-89 (1872) (involving communications made to Treasury officer, and collecting
cases involving communications made to various types of governmental officials)); see also
District Attorney v. Flatley, 419 Mass. 507, 510 (1995) (noting absolute nature of privilege and
fact that “[n]o subsequent Massachusetts decision modifies or abrogates either Tufts or
Worthington”). 2

2

This common-law privilege has been “modified” by the Massachusetts Legislature’s enactment
of the Public Records Law, M.G.L. c. 66, § 10, “to the extent that if the information qualifies as a
public record, the public is entitled to have access to it unless it falls within one of the
exemptions provided by [M.G.L. c. 4, § 7, cl. 26].” Rafuse v. Stryker, 61 Mass. App. Ct. 595,
596-97 (2004). The Public Records Law obviously does not apply here, where live testimony is
sought, and where there are privacy exceptions to the public records law.
12

 Third, AAG Kaczmarek should be protected from having to testify as to any ongoing
investigations or sensitive law enforcement techniques, as described supra, should the defendant
pursue such matters.
As a result of the above principles, the defendant’s ability to obtain evidence from AAG
Kaczmarek would be limited, making her compelled testimony and production of documents all
the more unwarranted.
V.

If AAG Kaczmarek is required to appear in the instant matter, the AGO
anticipates that its investigative team will soon be inundated with such requests.
Due to the claims against Sonja Farak and her alleged misconduct, the AGO anticipates

that this is among the first of many summonses of this type that may be directed to members of
its investigative team. It is simply not feasible for AAG Kaczmarek to perform her investigative
duties and also provide testimony and documentation in each case where Farak or the Amherst
drug laboratory is at issue. Under the extraordinary circumstances of this case, this Court should
take into account the extreme burden that would be placed on AAG Kaczmarek if this Court
were to rule that defense counsel in this and other similar cases may require her appearance to
testify and produce documents regarding the ongoing criminal investigation of Sonja Farak.

VI.

As an alternative to quashing the subpoena, this Court should restrict its scope.
In the event that this Court declines to quash the subpoena, it should restrict its scope by

relieving the obligation of the AGO to produce the following types of information:
1. Information concerning the criminal history of those other than the individual referenced
in the subpoena;
2. Information concerning the criminal history of any individual prior to the incidents giving
rise to the criminal matter at issue in the responsive documents and testimony;
3. Information concerning the health or medical or psychological treatment of individuals;
13

 4. Information that could lead to identity theft or similar conduct, such as dates of birth,
Social Security numbers; telephone numbers; precise addresses; and names of relatives.
5. Legal work product;
6. Documents that could allow the identities of complainants to be learned;
7. Disclosure of confidential investigative techniques;
8. Emails responsive to the subpoena, but not already contained in the case files specifically
listed therein. 3

CONCLUSION
For the foregoing reasons, the motion of the AGO should be allowed, and the subpoena
should be quashed or modified as described herein.
Respectfully Submitted

MARTHA COAKLEY
ATTORNEY GENERAL

Kris C. Foster (BBO #672376)
Assistant Attorney General
Criminal Bureau
One Ashburton Place
Boston, Massachusetts 02108
(617) 727-2200, ext. 2833
Date: October 1, 2013

3

The AGO reserves the right to raise other arguments and objections that become apparent to the
extent that it further locates and reviews documents responsive to the Subpoena.
14

 CERTIFICATE OF SERVICE

I hereby certify that I served a copy of the Attorney General’s Motion to Quash Subpoena
issued to Assistant Attorney General Anne Kaczmarek upon the defendant and his counsel via
electronic mail and first-class mail on this date.

________________________
Kris C. Foster
Assistant Attorney General
Date: October 1, 2013

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