In the Matter of a Grand Jury Investigation

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11697
IN THE MATTER OF A GRAND JURY INVESTIGATION.

Suffolk. September 4, 2014. - January 12, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Grand Jury. Subpoena. Cellular Telephone. Constitutional Law,
Grand jury, Subpoena, Self-incrimination. Practice,
Criminal, Grand jury proceedings, Subpoena duces tecum,
Warrant. Evidence, Grand jury proceedings. Attorney at
Law, Attorney-client relationship. Search and Seizure,
Warrant, Probable cause. Probable Cause.

Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 7, 2014.

The case was reserved and reported by Botsford, J.

Aaron M. Katz (Patrick Welsh with him) for the petitioner.
James L. Sultan (Charles W. Rankin with him) for the amicus
curiae.
Teresa K. Anderson, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, with her) for the
Commonwealth.

LENK, J. This appeal arises from a petition brought under

G. L. c. 211, § 3, challenging a Superior Court judge's order

approving the issuance of a grand jury subpoena duces tecum that
 2

compels a law firm to produce a cellular telephone. The single

justice reserved and reported the matter to this court, and our

analysis is confined to the limited record before us.

The Commonwealth contends that the telephone belonged to

John Doe,1 the target of a grand jury investigation; that it was

transferred from Doe to the law firm to obtain legal advice; and

that it contains in the information stored on its memory,

particularly in its record of text messages, evidence of a crime

under investigation by the grand jury. The Superior Court judge

determined that, while a subpoena served on Doe would violate

his right against self-incrimination, and a subpoena served on

the law firm would violate the attorney-client privilege, a

subpoena compelling the law firm to produce the telephone could

be served upon an ex parte showing by the Commonwealth of

probable cause sufficient for the issuance of a search warrant.

We conclude that, on the record before us, the attorney-client

privilege protects Doe against compelled production of the

telephone by the law firm, and that the protection afforded by

the attorney-client privilege may not be set aside based on a

showing of probable cause. We therefore reverse the Superior

Court judge's order.

1
A pseudonym.
 3

1. Background. The law firm began representing Doe in

April, 2013. According to the Commonwealth, in June, 2013, Doe

transferred the telephone to the law firm in connection with its

provision of legal services to him.2 In March, 2014, the

Commonwealth moved under Mass. R. Prof. C. 3.8 (f), 426 Mass.

1397 (1998), for judicial approval of a grand jury subpoena

compelling the law firm to produce the telephone.3 A Superior

2
The Commonwealth asserts that the judge made a specific
factual finding that the cellular telephone exists and is in the
possession of the law firm. We discern no such finding in the
judge's decision. In the "Facts" portion of his decision, the
judge indicated specifically that "[t]he Commonwealth asserts
that on or about June 16, 2013, [Doe] delivered his cell phone
to [his] attorneys in connection with their provision of legal
services to him." The factual findings that the Commonwealth
identifies involve either the judge's summary of uncontested
issues concerning the supposed telephone (e.g., that, if it was
transferred at all, it was transferred to obtain legal advice),
or his reprise of the representations of the parties.

The Commonwealth further contends that, in opposing the
Commonwealth's subpoena for the telephone, the firm has
implicitly conceded that it has possession of the device. In
other words, the Commonwealth would place the law firm in a
"Catch-22": to assert that the attorney-client privilege
protects against compelled production of the telephone, the firm
must implicitly disclose the client's privileged communication
that the telephone belongs to him, or at least that it was
previously in his possession. We reject this suggestion.
3
Rule 3.8 (f) of the Massachusetts Rules of Professional
Conduct, 426 Mass. 1397 (1998), provides that a prosecutor
shall:

"not subpoena a lawyer in a grand jury or other
criminal proceeding to present evidence about a past or
present client unless:
 4

Court judge held a hearing on the motion and issued a ruling

from the bench, followed by a written decision a few days

thereafter. The judge denied the motion, but noted that his

denial was without prejudice to refiling. The judge indicated

that, if he determined upon such refiling that the Commonwealth

had, through an ex parte proceeding, established probable cause

sufficient to justify a search under the Fourth Amendment to the

United States Constitution, he would allow the Commonwealth to

issue a subpoena compelling the law firm to produce the

telephone. At a subsequent hearing, the judge allowed the

Commonwealth's second motion for judicial approval of the grand

jury subpoena directed at the law firm, but stayed issuance and

"(1) the prosecutor reasonably believes:
"(i) the information sought is not protected from
disclosure by any applicable privilege;
"(ii) the evidence sought is essential to the
successful completion of an ongoing investigation or
prosecution; and
"(iii) there is no other feasible alternative to
obtain the information; and
"(2) the prosecutor obtains prior judicial approval
after an opportunity for adversarial proceeding . . . ."

Doe contends that the process by which the judge determined
that the requirements of Mass. R. Prof. C. 3.8 (f) were met, and
that the Commonwealth had established probable cause that the
telephone contained evidence of a crime and was in the
possession of the law firm, violated Mass. R. Prof. C. 3.8 (f)
and standards of constitutional due process. Because we
conclude that the attorney-client privilege precluded the
issuance of a subpoena given the facts of this case, we need not
reach this argument.
 5

execution of the subpoena to allow Doe to file a petition for

relief in the county court pursuant to G. L. c. 211, § 3. The

judge also ordered that, if the law firm indeed had the device

in its possession, it not alter, transfer, dispose of, return,

or otherwise render the telephone unavailable pending further

court order.

After Doe filed his G. L. c. 211, § 3, petition, the law

firm filed a motion to intervene. In response to a request by

the single justice, the law firm submitted an affidavit

indicating that, if the petition were dismissed, and if the

Commonwealth served the subpoena on the law firm, it would

refuse to comply, subjecting itself to a finding of contempt.

Based on this affidavit, the single justice reserved and

reported the matter to this court.4

2. Discussion. a. Standard of review. While we review a

trial judge's decisions on discovery matters for an abuse of

discretion, our review of mixed questions of fact and law,

including questions of the validity of an assertion of the

privilege against self-incrimination, is de novo. McCarthy v.

4
Notwithstanding the Commonwealth's contention that
extraordinary relief would not be available under G. L. c. 211,
§ 3, until the law firm disobeys the subpoena, subjecting itself
to a contempt order, "[w]here," as here, "the single justice
has, in [her] discretion, reserved and reported the case to the
full court, we grant full appellate review of the issues
reported." Martin v. Commonwealth, 451 Mass. 113, 119 (2008).
 6

Slade Assocs., Inc., 463 Mass 181, 190 (2012) (citation

omitted). Our review of a decision involving the attorney-

client privilege is likewise de novo. Clair v. Clair, 464 Mass.

205, 214 (2013), quoting Commissioner of Revenue v. Comcast

Corp., 453 Mass. 293, 302 (2009).

b. The right against self-incrimination, the act of

production doctrine, and the attorney-client privilege. We

conclude that the subpoena was issued improperly. This

conclusion derives from the application of three well-

established principles: the privilege against self-

incrimination, the act of production doctrine, and the attorney-

client privilege.

The Fifth Amendment to the United States Constitution

provides, in relevant part, that "[n]o person . . . shall be

compelled in any criminal case to be a witness against himself."

Article 12 of the Massachusetts Declaration of Rights similarly

provides that "[n]o subject shall . . . be compelled to accuse,

or furnish evidence against himself."

The United States Supreme Court has "made it clear that the

act of producing documents in response to a subpoena may have a

compelled testimonial aspect," because production may constitute

an admission "that the papers existed, were in [the witness's]

possession or control, and were authentic." United States v.

Hubbell, 530 U.S. 27, 36 (2000). With respect to art. 12, we
 7

similarly have held "that the act of production, quite apart

from the content of that which is produced, may itself be

communicative." Commonwealth v. Doe, 405 Mass. 676, 679 (1989).

By turning over evidence in response to a subpoena, a defendant

may be "making implicitly a statement about its existence,

location and control," and "[t]he implied statement would also

function as an authentication." Commonwealth v. Hughes, 380

Mass. 583, 592, cert. denied, 449 U.S. 900 (1980). See

Commonwealth v. Doe, supra (by turning over materials in

response to subpoena, witness "would be testifying, in effect,

as to the existence and location of those materials, as well as

to the control that he had over them," and implicitly would be

"authenticating those materials").

Indeed, the protection against the implicit self-

incrimination involved in compelled production stands on even

firmer ground under art. 12 than it does under the Fifth

Amendment. Unlike the Fifth Amendment, art. 12 specifically

prohibits compelling a defendant to "furnish evidence against

himself." We have long recognized, based on the "difference in

the phraseology between the Massachusetts Constitution and the

Fifth Amendment," Opinion of the Justices, 412 Mass. 1201, 1210

(1992), that "the protections of art. 12 extend beyond the

safeguards afforded by the United States Constitution." See

Doe, 405 Mass. at 678. The requirement that a subject not be
 8

forced to "furnish evidence against himself," we have observed,

"may be presumed to be intended to add something to the

significance of" the preceding protection against compelled

self-accusation. Opinion of the Justices, supra. Accordingly,

we have more broadly construed the protections afforded by the

act of production doctrine under art. 12, in comparison with the

Fifth Amendment. See id. at 1210-1211; Commonwealth v. Burgess,

426 Mass. 206, 218 (1997).

In Fisher v. United States, 425 U.S. 391, 402 (1976)

(Fisher), the United States Supreme Court held "that compelled

production of documents from an attorney does not implicate

whatever Fifth Amendment privilege the [target of an

investigation] might have enjoyed from being compelled to

produce them himself." The Court went on to conclude, however,

that, apart from the right against self-incrimination, the

attorney-client privilege protects certain materials from

production by an attorney. If a client "transferred possession

of . . . documents . . . from himself to his attorney in order

to obtain legal assistance, . . . the papers, if unobtainable by

summons from the client, are unobtainable by summons directed to

the attorney by reason of the attorney-client privilege." Id.

at 405.

"Under the facts and circumstances presented" in this case,

the motion judge was "satisfied that had a subpoena been served
 9

on [Doe] personally, he would be able to assert a privilege

against production of his [tele]phone based on the Fifth

Amendment and/or art. 12." In its brief, the Commonwealth

acknowledges that Doe could not be compelled to produce the

telephone had he retained possession of it. Nonetheless, the

Commonwealth offers several arguments that would avoid the

inevitable implications of that concession under the United

States Supreme Court's decision in Fisher. In essence, these

arguments seek to sever the chain that links the determination

that Doe could not be compelled to produce the telephone, had he

retained possession of it, with the conclusion that the law firm

likewise cannot be compelled to produce the telephone, after

purportedly receiving the telephone from Doe for the purpose of

rendering legal advice.

The Commonwealth contends, for instance, that although

Doe's act of producing the telephone in response to the subpoena

would be testimonial and incriminating under the Fifth Amendment

and art. 12, the law firm's act of producing the telephone in

response to a subpoena would be "trivial and non-testimonial."

That argument rests on a mistaken understanding of the Fisher

rule. The Fisher Court made clear that its analysis hinged not

on the law firm's act of producing the telephone, but rather on

the client's hypothetical act of producing evidence in response

to a subpoena; where materials were transferred to the attorney
 10

"for the purpose of obtaining legal advice," and where "the

client himself would be privileged [f]rom production" of the

materials had he retained them, "the attorney having possession

of the document is not bound to produce." Fisher, 425 U.S. at

404, quoting 8 J. Wigmore, Evidence § 2307, at 592 (McNaughton

rev. 1961).

The focus on whether Doe would be protected against

compelled production had he maintained possession of the

materials reflects the policy underlying the Fisher rule.

"Fisher's rule arose from the policy of promoting open

communications between lawyers and their clients." Application

of Sarrio, S.A., 119 F.3d 143, 146 (2d Cir. 1997). "Exposing

documents -- not otherwise subject to production -- to discovery

demands after delivery to one's attorney . . . would produce a

curious and unacceptable result." Ratliff v. Davis Polk &

Wardwell, 354 F.3d 165, 169 (2d Cir. 2003). It would mean that

"[t]he price of an attorney's advice would be disclosure of

previously protected matters," thereby "chill[ing] open and

frank communications between attorneys and their clients." Id.

As the United States Court of Appeals for the Ninth Circuit has

explained, "The attorney-client privilege and the interests it

protects would be ill-served by holding that [the client] walked

into his attorney's office unquestionably shielded with the

[F]ifth [A]mendment's protection, and walked out with something
 11

less." In re Grand Jury Proceedings on Feb. 4, 1982, 759 F.2d

1418, 1420 (9th Cir. 1985). Accordingly, under the Fisher

analysis, the law firm stands in its client's shoes; if a client

could not be compelled to produce materials because of the right

against self-incrimination, and if the client transfers the

materials to the attorney for the provision of legal advice, an

attorney likewise cannot be compelled to produce them.

The policy underlying the Fisher rule reveals the

inadequacy of the Commonwealth's suggestion that "the firm could

appoint an alternate third party designee to logistically

present the [tele]phone to the grand jury." The Fisher rule

serves to protect open communication between attorneys and

clients by ensuring that a client does not sacrifice the

protection that evidence otherwise would receive against

compelled production by transferring it to an attorney. The

damage to the attorney-client relationship would result whenever

previously unobtainable materials become obtainable as a result

of being transferred to the attorney, regardless of whether the

materials were handed over by a third-party designee or by the

law firm itself.

The Commonwealth cites In re Grand Jury Subpoena (Mr. S.),

662 F.3d 65 (1st Cir. 2011), cert. denied, 133 S. Ct. 43 (2012),

in support of its attempt to distinguish between the testimonial

character of the law firm's act of production and the client's
 12

act of production. But that case is inapposite. Unlike Fisher

and unlike the instant case, the client in In re Grand Jury

Subpoena (Mr. S.) had not transferred any materials to his

attorney. Instead, the client had approached the attorney to

complete a real estate transaction, prompting the attorney to

prepare a set of standard transaction documents. Id. at 73.

Because the client there never had possession of the documents

sought, the Fisher rule, which protects documents that could not

be obtained by a subpoena directed at the client from compelled

production once transferred to an attorney, played no role in

the case.

Finally, the Commonwealth seeks to distinguish between the

telephone as "physical evidence" and the concededly documentary

materials that the telephone contains. The Commonwealth insists

that it "only sought a grand jury subpoena for production of the

physical item of evidence," and asserts that, once it acquires

the telephone, "it will seek a search warrant to authorize a

forensic examination of the device." But if we were to embrace

this distinction, the result would empty the Fisher rule and the

act of production doctrine of any effect: the Commonwealth

could compel the production of any document based on the

assertion that the subpoena was directed merely at the document

as a "physical item" -- an amalgam of paper, binding, and ink --
 13

and that it would get a separate search warrant before actually

opening the document and reading the pages.

The extrajurisdictional case law that the Commonwealth

cites in support of its distinction between the telephone as a

"physical item" and the telephone's contents almost exclusively

involves items -- typically either the instrumentalities or

proceeds of crime -- whose evidentiary value to the prosecution

had nothing to do with their communicative contents. See In re

Ryder, 381 F.2d 713, 714 (4th Cir. 1967) (stolen money and

sawed-off shotgun); Hitch v. Pima County Superior Court, 146

Ariz. 588, 590 (1985) (wrist watch allegedly stolen from

victim); People v. Lee, 3 Cal. App. 3d 514, 521, 524-525 (1970)

(bloody shoes); Anderson v. State, 297 So. 2d 871, 871 (Fla.

Dist. Ct. App. 1974) (stolen dictaphone and calculator that

defendant was alleged to have received before turning over to

attorney); Rubin v. State, 325 Md. 552, 565 (1992) (gun and

bullets allegedly used in murder); People v. Nash, 418 Mich.

196, 216 (1983) (wallet allegedly taken from victim and

revolver, ammunition, and holster allegedly used in killing);

Commonwealth v. Stenhach, 356 Pa. Super. 5, 10 (1986) (broken

stock of rifle allegedly used in killing); State ex rel. Sowers

v. Olwell, 64 Wash. 2d 828, 829 (1964) (knives allegedly used in

crime). But see State v. Bright, 676 So. 2d 189, 193-194 (La.

Ct. App. 1996) (diary).
 14

By contrast, the Commonwealth concedes that many of the

materials contained on a cellular telephone are documentary. As

the United States Supreme Court has observed, "The term 'cell

phone' is itself misleading shorthand; many of these devices are

in fact minicomputers that also happen to have the capacity to

be used as a telephone," and "could just as easily be called

cameras, video players, rolodexes, calendars, tape recorders,

libraries, diaries, albums, televisions, maps, or newspapers."

Riley v. California, 134 S. Ct. 2473, 2489 (2014). Furthermore,

though the Commonwealth asserts that it will acquire a separate

warrant before searching the contents of the telephone, the

evidentiary value of the telephone for the prosecution clearly

inheres in its documentary contents, rather than in the

telephone as a "physical item." Indeed, in its initial motion

for judicial approval of the grand jury subpoena, the

Commonwealth indicated that the "cell phone, specifically the

information contained therein and accessible through a forensic

examination of the phone, constitutes evidence that is essential

to the successful completion of the . . . ongoing grand jury

investigation."

Additionally, the Commonwealth notes that Mass. R. Prof.

C. 3.4 (a), 426 Mass. 1389 (1998), which prohibits a lawyer from

"unlawfully obstruct[ing] another party's access to evidence or

unlawfully alter[ing], destroy[ing], or conceal[ing] a document
 15

or other material having potential evidentiary value," requires

that the firm produce the telephone. Because the firm is now

"aware of the [telephone's] import and that it has evidentiary

value," the Commonwealth contends, the firm "cannot circumvent

its ethical obligations" by invoking the attorney-client

privilege. But that argument begs the question. Rule 3.4 (a)

of the Massachusetts Rules of Professional Conduct prohibits a

lawyer from obstructing a party's access to evidence only where

that obstruction is "unlawful." The law firm asserts that its

refusal to produce the telephone is not "unlawful," but is

instead required by the attorney-client privilege.

Because the Commonwealth does not contest that Doe's

privilege against self-incrimination would prohibit it from

compelling Doe to produce the telephone had he retained it, and

because under Fisher the law firm cannot be compelled to produce

materials transferred to it by a client for the provision of

legal advice if the client could not have been compelled to

produce them, we conclude on the record before us that the

attorney-client privilege protects against compelled production

of the telephone.

c. Superior Court judge's decision. Although the judge

approved the issuance of the subpoena, he did so on the basis of

a logic that differs from the arguments advanced by the

Commonwealth on appeal. Unlike the Commonwealth, the judge
 16

correctly interpreted Fisher to mean that the law firm "could

refuse to comply with [the subpoena] based on the attorney-

client privilege if, had the subpoena been served directly on

[Doe], he would be able to assert a Fifth Amendment protection

(or parallel protections under art. 12 of the Massachusetts

Declaration of Rights)." The judge nevertheless determined that

the law firm could be compelled to produce the telephone.

The judge observed that, had Doe not transferred the

telephone to his attorney, nothing would prevent the police from

finding and seizing the telephone under a properly issued search

warrant. The judge noted, however, that, because Doe had

transferred the telephone to his lawyers, there was a "fly in

the ointment" of the search warrant approach. General Laws

c. 276, § 1, a general provision governing the issuance of

search warrants, includes in its final paragraph a restriction

on the issuance of search warrants for evidence in the

possession of lawyers, psychotherapists, and clergymen. It

provides, in part, that "no search warrant shall issue for any

documentary evidence in the possession of a lawyer . . .

unless . . . a justice is satisfied that there is probable cause

to believe that the documentary evidence will be destroyed,

secreted, or lost in the event a search warrant does not issue,"

or unless "there is probable cause to believe that the lawyer
 17

. . . in possession of such documentary evidence has committed,

is committing, or is about to commit a crime."

The judge thus confronted a situation in which the Fisher

rule and G. L. c. 276, § 1, appeared, in combination, to place

the telephone beyond the reach of law enforcement. Concluding

that G. L. c. 276, § 1, "cannot . . . be used as a shield to

protect clearly inculpatory evidence . . . from the reach of the

law," the judge determined that a subpoena could issue

compelling the law firm to turn over the telephone, but only

upon a showing of the probable cause that ordinarily would be

sufficient, were it not for G. L. c. 276, § 1, to acquire a

warrant to search the law firm's offices and seize the

telephone. In essence, the judge crafted a new rule through an

aggregation of the procedures that would be permitted were it

not for the Fisher rule and G. L. c. 276, § 1. In the absence

of the Fisher rule, the law firm could be compelled to produce

the telephone under subpoena upon the prosecution's satisfying

the requirements of Mass. R. Prof. C. 3.8 (f). In the absence

of G. L. c. 276, § 1, the police could acquire a warrant to

search the law firm's offices if the prosecution established

probable cause to believe that the telephone was located in the

law firm's offices and contained evidence of a crime.

Consequently, the judge concluded that the law firm could be

compelled to produce the telephone under subpoena, but only if
 18

the Commonwealth could establish probable cause to believe that

the telephone was located in the law firm's offices and

contained evidence of a crime.

This approach, however, contradicts both case law and the

relevant statute. The judge's approach is built on conflating

search warrants and subpoenas. Yet the act of production

doctrine's underlying premise is that being compelled to produce

evidence in response to a subpoena may involve a forced

incriminating statement that would not occur if law enforcement

simply found the evidence while executing a search. See, e.g.,

Commonwealth v. Hughes, 380 Mass. at 593.

Because the act of production doctrine derives from the

privilege against self-incrimination, moreover, it may not be

set aside based on a showing of probable cause. We have

emphasized the distinction between the protection against

unreasonable searches afforded by the Fourth Amendment and the

more absolute protection afforded by the privilege against self-

incrimination. "[U]nlike the more limited protections of the

Fourth Amendment prohibition against searches and seizures that

are 'unreasonable,'" Blaisdell v. Commonwealth, 372 Mass. 753,

761 (1977), the privilege against self-incrimination admits "no

balancing of State-defendant interests" and does not "yield[] to

'reasonable' intrusions." Id. Law enforcement, for instance,

plainly could not compel a defendant to disclose where he
 19

allegedly hid a murder weapon, even if the police could

establish probable cause to believe that the weapon was hidden

somewhere in his house and that, if given a warrant, they would

likely be able to find the weapon eventually anyway. To the

contrary, "where the privilege [against self-incrimination]

applies, it may be overcome only by either (1) a

constitutionally adequate grant of immunity; . . . or (2) a

valid waiver of the privilege by the person who possesses it."

Id. (citation omitted).

Under Fisher, the protection that a client enjoys under the

attorney-client privilege is coterminous with the protection

that a client would have enjoyed under the privilege against

self-incrimination. Consequently, just as the right against

self-incrimination may not be set aside based on judicial

speculation about what the prosecution might be able to find

with a valid search warrant, neither may the Fisher rule. In

short, neither the privilege against self-incrimination nor the

attorney-client privilege may be extinguished on the basis of a

"would've, could've" analysis that invites courts to hypothesize

upon what police might be able to find and seize, if given

enough time and a valid search warrant.

The judge based his decision on a provision in G. L.

c. 276, § 1, that states, "Nothing in this section shall be

construed to abrogate, impair, or limit powers of search and
 20

seizure granted under other provisions of the General Laws or

under the common law." Again, however, this conclusion rests on

conflating subpoenas with search warrants, and the prosecution's

ability to compel production of evidence with the prosecution's

power merely to look for it. The Commonwealth did not seek to

obtain the telephone through its "powers of search and seizure."

Instead, it has sought to obtain the telephone via a subpoena.

And the basis upon which we have decided that the Commonwealth

cannot obtain the telephone via subpoena has nothing to do with

G. L. c. 276, § 1, or any other limitation on the Commonwealth's

"powers of search and seizure." Instead, our holding is based

on our determination that the compelled production of the

telephone via a subpoena directed at Doe would violate the act

of production doctrine, and consequently that the compelled

production of the telephone via a subpoena directed at the law

firm would violate the attorney-client privilege under Fisher.

Because the Commonwealth here sought, and the judge allowed, a

subpoena compelling production of the telephone, the provision

of G. L. c. 276, § 1, relating to "powers of search and seizure"

has no bearing on the analysis.

d. Availability of a search warrant under G. L. c. 276,

§ 1. Although the Commonwealth has consistently sought to

acquire the telephone via a subpoena, it does indicate that, if

we decline to authorize the issuance of a subpoena compelling
 21

the law firm to produce the telephone, it "will seek a search

warrant to seize the evidence from the law firm." Even if the

Commonwealth were to pursue that approach, however, it would not

gain any support from the provision of G. L. c. 276, § 1,

preserving "powers of search and seizure." That provision

precedes, rather than follows, the paragraph prohibiting

searches of documentary evidence in the possession of lawyers.5

5
The provisions relevant to our discussion appear at the
end of G. L. c. 276, § 1, and provide in full:

"Nothing in this section shall be construed to
abrogate, impair or limit powers of search and seizure
granted under other provisions of the General Laws or under
the common law.

"Notwithstanding the foregoing provisions of this
section, no search and seizure without a warrant shall be
conducted, and no search warrant shall issue for any
documentary evidence in the possession of a lawyer,
psychotherapist, or a clergyman, including an accredited
Christian Science practitioner, who is known or may
reasonably be assumed to have a relationship with any other
person which relationship is the subject of a testimonial
privilege, unless, in addition to the other requirements of
this section, a justice is satisfied that there is probable
cause to believe that the documentary evidence will be
destroyed, secreted, or lost in the event a search warrant
does not issue. Nothing in this paragraph shall impair or
affect the ability, pursuant to otherwise applicable law,
to search or seize without a warrant or to issue a warrant
for the search or seizure of any documentary evidence where
there is probable cause to believe that the lawyer,
psychotherapist, or clergyman in possession of such
documentary evidence has committed, is committing, or is
about to commit a crime. For purposes of this paragraph,
'documentary evidence' includes, but is not limited to,
writings, documents, blueprints, drawings, photographs,
computer printouts, microfilms, X-rays, files, diagrams,
 22

See G. L. c. 276, § 1. The latter paragraph opens,

"Notwithstanding the foregoing provisions of this section,"

making it clear that it in fact does limit the powers of search

and seizure. See id. Indeed, because the paragraph prohibits

the issuance of search warrants for documentary evidence except

under certain narrowly drawn circumstances, it plainly does

"abrogate, impair, or limit powers of search and seizure granted

under other provisions of the General Laws or under the common

law." Id.

The Commonwealth offers two reasons why a search for the

telephone would not violate the restrictions that G. L. c. 276,

§ 1, imposes on searches of law offices. First, the

Commonwealth asserts that the search and seizure it contemplates

is not for any "documentary evidence," and thus falls outside

the scope of the statute. Second, the Commonwealth contends

that, even if the statute did apply to the contemplated search

for the telephone, the search falls within the statute's

exceptions for situations where "documentary evidence will be

destroyed, secreted, or lost in the event a search warrant does

not issue." G. L. c. 276, § 1. We address each in turn.

i. The Commonwealth's first argument is easily dismissed.

General Laws c. 276, § 1, contains a broad definition of

ledgers, books, tapes, audio and video recordings, films or
papers of any type or description."
 23

"documentary evidence." It provides that, "[f]or purposes of

this paragraph, 'documentary evidence' includes, but is not

limited to, writings, documents, blueprints, drawings,

photographs, computer printouts, microfilms, X-rays, files,

diagrams, ledgers, books, tapes, audio and video recordings,

films or papers of any type or description." Id. The

Commonwealth concedes that "the modern cell phone may contain

any and all of the above listed categories of evidence."

The Commonwealth's contention that a search for the

cellular telephone would not constitute a search for

"documentary evidence" relies upon the same misplaced

distinction between the telephone as a "physical item" and the

telephone's undeniably documentary contents that the

Commonwealth advances in arguing that the Fisher rule does not

apply, and the distinction fails here for similar reasons. For

instance, while "files" are specifically identified as

"documentary evidence" in the statute, the statute itself does

not refer to file cabinets. If we were to accept the

Commonwealth's distinction between the telephone as a "physical

item" and the documentary materials that the telephone contains,

then the Commonwealth also could acquire a warrant to search an

attorney's office and seize a file cabinet, including the files

it contains, as a "physical item." The Commonwealth conceded in

its motion for issuance of a subpoena that the evidentiary value
 24

of the telephone for purposes of investigation derives from the

"documentary" materials contained on the telephone, rather than

from any aspect of the telephone as a "physical item." Under

these circumstances, it is clear that a search for the telephone

is a search for "documentary evidence" within the meaning of

G. L. c. 276, § 1.

ii. The Commonwealth next asserts that a search warrant

may issue in this case because "there is probable cause to

believe that the documentary evidence will be destroyed,

secreted, or lost in the event a search warrant does not issue."

For several reasons, we are unconvinced by the Commonwealth's

argument that, "in the event that the Commonwealth cannot

otherwise obtain the item, the evidence will effectively be

'secreted' and 'lost.'"

The interpretation offered by the Commonwealth diverges

from any accepted definition of "secreted" or "lost." An item

is "secreted" when it is "hid[den]," "conceal[ed]," or

"remove[d] from observation or the knowledge of others"; an item

is "lost" when it is "not be found; missing" or "no longer held

or possessed; parted with." Webster's New Universal Unabridged

Dictionary 1640, 1069 (2d ed. 1983). The Commonwealth's

argument would require that we add to these familiar definitions

a new, distinctly unfamiliar definition: "unobtainable by law
 25

enforcement because of the combined effect of a legal privilege

and a statute."

The interpretation offered by the Commonwealth, moreover,

ignores the statute's requirement for a factual showing. To

obtain a search warrant for a lawyer's office, the prosecutor

must make a showing of "probable cause to believe that the

documentary evidence will be destroyed, secreted, or lost in the

event a search warrant does not issue," or that "there is

probable cause to believe that the lawyer . . . in possession of

such documentary evidence has committed, is committing, or is

about to commit a crime." G. L. c. 276, § 1. Under the

interpretation urged by the Commonwealth, this requirement of a

factual showing of probable cause disappears. Instead, whether

an item is "secreted" or "lost" becomes a purely legal issue, on

which the Commonwealth can prevail simply by showing that the

lawyer holding the evidence has invoked a privilege against

compelled production.

The Commonwealth's overarching contention is that the

exception applies to any situation where the application of

G. L. c. 276, § 1, renders documentary materials whose contents

are not themselves privileged unobtainable by law enforcement.

Nothing in the language of the exception supports this view, and

it gains no support from the legislative history of the act that

amended G. L. c. 276, § 1, to add the provision at issue here.
 26

The legislative history indicates that the provision was

inserted for two main reasons. First, the provision sought to

ensure that "the holder [of material sought by law enforcement]

has the opportunity to argue that the material is privileged"

before the material is seized, an opportunity unavailable with

search warrants because they are "granted ex parte with no

notice to the holder of the material." Memorandum from Patricia

A. Boies, Deputy Chief Counsel, Office of Legal Counsel, to then

Governor, Michael S. Dukakis (Dec. 18, 1986). Just so, here,

confronted by a subpoena seeking the telephone, the law firm

responded by asserting the attorney-client privilege, as

articulated in Fisher. Fisher had been the law for more than a

decade when the provision was enacted. Because we presume that

the Legislature acts against the backdrop of already-existing

law, see Alliance to Protect Nantucket Sound, Inc. v. Energy

Facilities Siting Bd., 457 Mass. 663, 673 (2010), it is

reasonable to think that Fisher would supply one possible basis

for a claim of privilege.

Second, the legislative history indicates that the

provision sought to counteract the disruptive effect that police

searches could have on "the private, confidential relationships

between the professionals covered and their clients, patients,

or penitents." Boies memorandum, supra. In particular, the

provision was "designed to protect against the situation in
 27

which police executing a search warrant may look through many

documents, both privileged and unprivileged, relating to clients

who are not even the subject of the documents sought, and then

must make on-the-spot decisions as to what should or should not

be seized." 1986 House Doc. 6574 (Letter from then Governor

Michael S. Dukakis to the Senate and House of Representatives

[Dec. 24, 1986]). The risk that law enforcement will

inadvertently see or seize private, confidential documents

related to uninvolved third-parties exists whenever law

enforcement executes a search, regardless of whether the

documents that law enforcement is looking for are privileged.

Accordingly, we reject the Commonwealth's contention that

documentary evidence is "secreted" whenever an attorney invokes

the Fisher rule to resist its compelled production. Instead, we

conclude that the exception applies, as it says, only where

"there is probable cause to believe that the documentary

evidence will be destroyed, secreted, or lost in the event a

search warrant does not issue." As indicated, this is a fact-

specific determination. Were the Commonwealth to seek a search

warrant on the same record that was before the Superior Court

judge in March, 2014, when the Commonwealth moved for judicial

approval for a subpoena, it would not satisfy the "secreted"

exception. At that time, the Commonwealth agreed that the

telephone had been given to the law firm for purposes of
 28

acquiring legal advice. Nothing in the record suggests that in

March, 2014, the law firm was no longer engaged in providing the

requested advice. The privileged retention of client documents

in such circumstances cannot be said to be the secretion of

those documents. Hence, in this case, on this record, there is

no evidence suggesting secretion of the documents. We leave for

another day the question whether and under what circumstances

the prolonged retention by counsel of client documents

unprotected or no longer protected by any privilege might

qualify as secreting under the meaning of G. L. c. 276, § 1.

Notwithstanding the foregoing, we are mindful of the

concern that, if evidence possibly obtainable via a search when

it was in the client's hands were to become immune from both

search and subpoena when placed in an attorney's hands, the

result will be, as the Superior Court judge noted, "a race . . .

to the lawyer's office." We make several observations.

First, G. L. c. 276, § 1, only operates to bar the search

of an attorney's offices in a narrow set of circumstances. The

statute is limited to searching for documentary evidence and

would not typically encompass situations where a client seeks to

hide the instrumentalities or proceeds of a crime at an

attorney's office. While the telephone at issue here

constitutes "documentary evidence" under the statute, the

statute also provides explicit exceptions for circumstances
 29

where the evidence "will be destroyed, secreted or lost in the

event a search warrant does not issue," or for circumstances

where the holder of the evidence "has committed, is committing,

or is about to commit a crime."

Second, it is the act of producing the telephone by the law

firm, rather than the telephone itself, that is covered by the

attorney-client privilege. The client's right against compelled

production by his or her attorney is not absolute. To fall

under the Fisher rule, materials whose contents are not

themselves privileged must have been transferred to counsel "for

the purpose of obtaining legal advice." Fisher, 425 U.S.

at 404. Accordingly, when a client transfers materials to an

attorney for purposes of shielding them from law enforcement's

reach, the Fisher rule offers no protection.6

Third, nothing we have said suggests that a lawyer, having

received materials whose contents are not themselves privileged

for purposes of rendering legal advice, may retain such

materials indefinitely, absent a continuing bona fide need and

purpose related to the provision of legal advice. Any

6
The act of production doctrine is itself not absolute and
admits of the "foregone conclusion" exception. See Commonwealth
v. Gelfgatt, 468 Mass. 512, 522 (2014) (Commonwealth may compel
a testimonial and incriminating act of production if it can
establish that "the information that would be disclosed by [a]
defendant is a 'foregone conclusion'"). The Commonwealth does
not argue that the exception has any application to the facts of
record here.
 30

assessment of whether and, if so, when client materials would

cease to be protected by the Fisher rule is, of course, a

complex matter, involving factual determinations that will

depend on the specific circumstances presented. Because the

Commonwealth has never argued that either Doe's initial transfer

of the telephone or the law firm's continued retention of it are

not justifiable "for the purpose of obtaining legal advice"

under Fisher, and the parties have not provided briefing on the

issue, we do not address the availability of a subpoena

compelling the production of evidence in other circumstances.7

3. Conclusion. Confining ourselves to the record that was

before the Superior Court judge in March, 2014, we conclude that

Doe's attorney-client privilege protects against compelled

production of the telephone by the law firm. We remand the

matter to the single justice for entry of a judgment allowing

Doe's petition for relief under G. L. c. 211, § 3, ordering the

Superior Court to reverse the order approving the issuance of a

grand jury subpoena duces tecum, and for such other proceedings

as are consistent with this opinion.

So ordered.

7
We note that the concurrence proposes a protocol in
circumstances that are not before us, and we take no view as to
its propriety.
 CORDY, J. (concurring, with whom Gants, C.J., and Spina,

J., join). John Doe is the target of a grand jury

investigation. According to evidence gathered in the course of

that investigation, Doe's cellular telephone contains evidence

of the criminal activities under investigation. In June, 2013,

Doe transferred his cellular telephone to a law firm that was

providing him legal advice. After demonstrating that the

Commonwealth had probable cause to believe that the cellular

telephone contained evidence of the crimes under investigation,

the judge below authorized the issuance of a subpoena to the law

firm requiring it to produce the cellular telephone before the

grand jury.

In objecting to the issuance of the subpoena, neither Doe

nor the law firm contends that the cellular telephone contains

any communications or other information stored on its memory

that might be protected by the attorney-client or any other

privilege. Rather, they contend that because the cellular

telephone may contain incriminating evidence, compelling Doe to

produce it before the grand jury by means of a subpoena would

essentially compel a testimonial acknowledgement from him that

the cellular telephone was his. Consequently, the law firm

argues, having come into possession of the cellular telephone in

the course of giving Doe legal advice, it also cannot be

compelled by subpoena to produce the cellular telephone before
 2

the grand jury. The law firm and Doe further argue that G. L.

c. 276, § 1, the statute governing the issuance of search

warrants, does not permit the Commonwealth to search for and

seize the cellular telephone while it remains in the possession

of the law firm, even though it could be obtained from Doe

through that mechanism. Thus, they argue, the Commonwealth is

effectively precluded from obtaining any of the nonprivileged

information on the cellular telephone relevant to the criminal

investigation, at least on the record before the judge below.

I agree with the court that Fisher v. United States, 425

U.S. 391, 402 (1976), controls the subpoena question in this

case. Where the cellular telephone (cell phone) was turned over

to the law firm for the purpose of obtaining legal advice, and

Doe himself could not have been compelled to produce the phone

in response to a similar subpoena because the act of production

would be both testimonial and incriminating, the umbrella of the

attorney-client privilege protects it from compelled production.

I also agree that the record below is inadequate to make a

judgment about the propriety of issuing a search warrant. I

write separately, however, to emphasize that placing the cell

phone (or any other incriminating documentary evidence) in the

hands of an attorney does not sequester it under Massachusetts

law from the reach of law enforcement pursuant to G. L. c. 276,

§ 1, where it is not claimed that the cell phone itself is
 3

privileged or contains privileged material, where there is

probable cause to believe that it contains evidence of crimes

under investigation by the grand jury, and where it is no longer

being retained for the purpose of rendering legal advice. To

interpret G. L. c. 276, § 1, otherwise would stand completely at

odds with clear legislative intent.

General Laws c. 276, § 1, was amended by c. 691 of the Acts

of 1986 to provide special protections for documentary evidence

in the possession of lawyers, psychotherapists, and clergymen,

from the intrusions that might be caused by the execution of

search warrants, except in circumstances where the failure to

issue such a warrant might result in the evidence being

unavailable through secretion, destruction, or loss.1 The 1986

amendment identified these professionals and provided unique

protections for documents in their files precisely because the

law provides special privileges to the consultations they have

with their clients, patients, or parishioners. The Legislature

recognized that a search of their files for nonprivileged

documents (pursuant to a search warrant) would pose a

significant risk that the privileges of innocent third parties

1
The amendment also provided that a search warrant for such
documentary evidence could be obtained if there was probable
cause to believe that the lawyer, psychotherapist, or clergyman
in possession of the evidence had committed, was committing, or
was about to commit a crime.
 4

would be compromised. See, e.g., 1986 House Doc. No. 6574

(Letter from then Governor, Michael S. Dukakis, dated December

24, 1986, explaining purpose of amendment is to protect

confidential relationship of covered professionals and their

clients); Letter from Karen Hudner, Legislative Agent, Civil

Liberties Union of Massachusetts, to then Governor, Michael S.

Dukakis (Dec. 9, 1986) (Hudner letter) (arguing amendment would

protect privacy of third persons in confidential relationships

with covered professionals); Memorandum from Patricia A. Boies,

Deputy Chief Counsel, Office of Legal Counsel, to the then

Governor, Michael S. Dukakis (Dec. 18, 1986) (Boies memorandum)

(highlighting proponents' concern that police, while executing a

search warrant, look through privileged and unprivileged

documents that are both related and unrelated to subject of

search).

As repeatedly articulated by the proponents of the

legislation, over the many years it was under consideration by

the Legislature, the legislation was intended "to protect

innocent third parties in a confidential legal or medical

relationship . . . [and] would affirm that in Massachusetts

. . . the privacy of innocent people is protected against

unnecessary intrusion." Hudner letter, supra. The proponents

also proclaimed that the amendment would not impede the

legitimate interests of law enforcement because "their right to
 5

subpoena the very same material would still be available to

them." Letter from James T. Hilliard, Counsel, Massachusetts

Psychiatric Society, to then Governor, Michael S. Dukakis (Dec.

16, 1986). In other words, there would be "no harm from this

[amendment], which would merely shift [the gathering of

evidence] to the usage of a subpoena duces tecum," a more

surgical instrument, thereby "permit[ting] orderly litigation of

the issue of privilege." Letter from Arnold R. Rosenfeld, Chief

Counsel, Committee for Public Counsel Services, to then

Governor, Michael S. Dukakis (Dec. 10, 1986). See Letter from

Nathan A. Talbot, Committee on Publication for Massachusetts,

The First Church of Christ, Scientist, to then Governor, Michael

S. Dukakis (undated) (stating amendment would not hinder

investigations). Indeed, in proposing amended language that

narrowed the breadth of the amendment and ultimately became the

statutory language, the Governor urged the General Court to

adopt his language because it would accomplish the purpose of

protecting privileged relationships without having "the

unintended effect of resulting in the loss of evidence not

protected by any privilege." 1986 House Doc. No. 6574. There

is, however, nothing in the extensive legislative history

leading to the adoption of the amendment to suggest that the

Legislature (or the proponents) considered the circumstances of

the present case -- where a subpoena is not available as an
 6

alternative to the Commonwealth for reasons unrelated to the

privileged nature of the documents themselves.

To interpret the 1986 amendment to bar the seizure upon

warrant of unprivileged evidence of a crime, where the evidence

cannot be obtained by subpoena only because of the incriminating

nature of the act of compelled production, runs counter to (not

in accord with) the purposes of its enactment as articulated by

the Governor and its proponents. See, e.g., Boies memorandum,

supra (explaining opportunity to litigate privilege issue before

seizure was crucial to proponents). Simply put, the amended law

was never intended to permanently shield from seizure

unprivileged evidence of criminal activity placed in the hands

of an attorney by a client under investigation, or to create a

depository for the secretion or sequestration of such evidence

from law enforcement. See, e.g., 1986 House Doc. No. 6574

(proposing language -- ultimately accepted -- that avoids

unintended protection of unprivileged materials). Indeed, the

exclusions in the amendment for documents that might become

destroyed, lost, or secreted from the Commonwealth is consistent

with the Legislature's intention not to make unprivileged

material unavailable to the Commonwealth.

In light of the extensive legislative history at our

disposal laying out the contrary intentions of all parties to

the legislative process, our responsibility is to interpret the
 7

statute in accord with those intentions if at all possible.

Commonwealth v. Parent, 465 Mass. 395, 409 (2013), quoting

Commonwealth v. Rahim, 441 Mass. 273, 278 (2004) ("[court] need

not adhere strictly to the statutory words if to do so would

lead to an absurd result or contravene the clear intention of

the Legislature").

I am of the view that both the interests protected by the

amendment and the Commonwealth's interest in securing evidence

not intended to be protected by the amendment can be reconciled,

and I would not preclude such a reconciliation on an adequate

record. I would conclude that in the circumstances where it

appears that an item of evidence sought by the Commonwealth

cannot be obtained from the law firm by the issuance of a

subpoena because of its client's privilege regarding production,

and where, as a consequence, a search warrant would ordinarily

be necessary, the warrant application should be presented to a

judge, with those circumstances set out in an affidavit. The

judge should then issue a short order of notice to the law firm,

giving it an opportunity to raise any privilege that might

protect the item from seizure. Along with the short order of

notice, the judge should issue an order barring the law firm

from transferring or destroying the item pending further ruling

of the court. In this manner, the unprivileged and relevant

evidence is not lost to the Commonwealth, and there is an
 8

opportunity prior to a search for privileges to be raised and

litigated. If the judge concludes that no privilege applies to

the item and that its retention by the law firm is no longer for

the purpose of or necessary to the rendering of legal advice,

the judge may properly order the warrant to issue.2 In such

circumstances, the continued retention of the evidence would

constitute its concealment within the meaning of the term

"secreted" as used in G. L. c. 276, § 1.3 The judge may further

direct the parties to fashion a protocol unlikely to pose a risk

to the privileges of other documents or clients or to result in

a production that is testimonial and incriminating. See, e.g.,

Preventive Med. Assocs., Inc. v. Commonwealth, 465 Mass. 810,

824-25, 828 (2013) (summarizing court's ordered procedure for

privilege review); Commonwealth vs. Ellis, Mass. Super. Ct. Nos.

97-192, 97-562, 98-355, 97-193, 97-561, 97-356, and 97-563, slip

op. at 44-45 (Aug. 18, 1999) (outlining procedure used to search

2
The Restatement (Third) of the Law: The Law Governing
Lawyers § 119 comment (c) (Physical Evidence of a Client Crime)
(2000), provides that although it may be reasonably necessary
for purposes of representation to take possession of evidence
for the time necessary to examine it, "physical evidence of a
client crime in possession of the lawyer may not be retained to
a point at which its utility as evidence for the prosecution is
significantly impaired."
3
"Secrete" is defined in Black's Law Dictionary 1557 (10th
ed. 2014), as "to remove or keep from observation, . . . to
conceal . . . to hinder or prevent officials . . . from finding
it."
 9

law firm records). See also ABA Standards for Criminal Justice

§ 4-4.6 (Physical Evidence) (3d ed. 1993) ("If defense counsel

retains the item [of evidence], he or she should retain it in

his or her office in a manner that does not impede the lawful

ability of law enforcement authorities to obtain the item").

Accordingly, while I would reverse the judge's order

authorizing the issuance of a grand jury subpoena, I would not

preclude the issuance of a search warrant on a more complete

record with regard to the status of the cellular telephone

evidence, its utility as evidence of a crime, and whether its

continued retention is necessary for the purpose of rendering

legal advice.