disclosure defense in Massachusetts

2023A defendant must make "some offering" so that the judge "may assess the materiality and relevancy of the disclosure to the defense." Dias, 451 Mass. 469 , quoting Swenson, 368 Mass. at 276 .

2015A defendant making such a claim is required to present “some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case and the defense offered thereto.” Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013) (Kelsey), quoting Commonwealth v. Swenson, 368 Mass. 268, 276 (1975). 22 The relatively undemanding nature of this standard is the result of the fact that, again, the details concerning privileged information sought by the defendant ordinarily are not in his or her possession.

2025The defendant satisfies his first stage burden by presenting "some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case and the defense offered thereto." Id., quoting Commonwealth v. Kelsey, 464 Mass. 315, 323 (2013).

2019In so requesting, a defendant must "present 'some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense,' " but only if it "is not apparent from the nature of the case and the defense offered thereto." Bonnett , supra , quoting Commonwealth v. Kelsey , 464 Mass. 315 , 323, 982 N.E.2d 1134 (2013).

2024See id. at 71, quoting Commonwealth v. Dias, 451 Mass. 463, 469 (2008) ("defendant must make 'some offering' so that the judge 'may assess the materiality and relevancy of the disclosure to the defense'").

2023Should a defendant wish to overcome the informant privilege, the defendant bears the burden of challenging the Commonwealth's assertion. [Commonwealth v. Dias, 451 Mass. 463, 464 (2008)]. 'We have characterized a defendant's obligation at this juncture as "relatively undemanding," but it does require the defendant to articulate a basis sufficient for the judge to "assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case."' [Commonwealth v. D.M., 480 Mass. 1004, 1006 (2018)], quoting Bonnett, supra at 847.

2018Where, as here, a defendant requests that the privilege be set aside on the ground that it "interferes with a fair defence," Commonwealth v. Johnson , 365 Mass. 534 , 544 (1974), he "is required to present 'some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case and the defense offered thereto.' " Bonnett , 472 Mass. at 847 , quoting from Commonwealth v. Kelsey , 464 Mass. 315 , 323 (2013).

2013In Commonwealth v. Lugo, 406 Mass. 565, 574 (1990), we reframed this inquiry and asked simply “whether disclosure would have provided material evidence needed by the defendant for a fair presentation of his case to the jury.” While we have imposed no requirement that a defendant “make a specific showing of just what the evidence would have proved and how far he was prejudiced by the withholding,” Commonwealth v. Johnson, 365 Mass. 534, 547 (1974), we have nonetheless noted that he must “make some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the

1999“The disclosure requirement takes from the fiduciary the power to decide whether the opportunity ... is in the corporation’s interest and removes the temptation posed by ‘a conflict between self-interest and integrity.’ ” Id. at 531 , quoting from Durfee v. Durfee & Canning, Inc., 323 Mass. 187, 198 (1948).

1997The disclosure requirement takes from the fiduciary the power to decide whether the opportunity or self-dealing transaction is in the corporation’s interest and removes the temptation posed by “a conflict between self-interest and integrity.” Durfee, supra at 198 , quoting Michoud v. Girod, 45 U.S. (4 How.) 503, 555 (1845).

2024By requiring the husband to provide "complete tax returns from 2018 to 2021, including, but not limited to 1099s, with all supporting documents and relevant schedules," it provided the husband with "adequate notice of the required . . . activity." Lynch v. Police Comm'r of Boston, 51 Mass. App. Ct. 772, 776 (2001).

2023Should a defendant wish to overcome the informant privilege, the defendant bears the burden of challenging the Commonwealth's assertion. [Commonwealth v. Dias, 451 Mass. 463, 464 (2008)]. 'We have characterized a defendant's obligation at this juncture as "relatively undemanding," but it does require the defendant to articulate a basis sufficient for the judge to "assess the materiality and relevancy of the disclosure to the defense, if that relevancy is not apparent from the nature of the case."' [Commonwealth v. D.M., 480 Mass. 1004, 1006 (2018)], quoting Bonnett, supra at 847.

2020P. 14 "envisions a broad disclosure requirement for exculpatory facts, the rule explicitly identifies only a few specific categories of potentially exculpatory information that a prosecutor must disclose." CPCS, 480 Mass. 700, 732 (2018), citing Mass. R.

2015See Commonwealth v. Hernandez, 421 Mass. 272, 276 (1995), quoting Johnson, supra at 547.

2013In Commonwealth v. Lugo, 406 Mass. 565, 574 (1990), we reframed this inquiry and asked simply “whether disclosure would have provided material evidence needed by the defendant for a fair presentation of his case to the jury.” While we have imposed no requirement that a defendant “make a specific showing of just what the evidence would have proved and how far he was prejudiced by the withholding,” Commonwealth v. Johnson, 365 Mass. 534, 547 (1974), we have nonetheless noted that he must “make some offering so that the trial judge may assess the materiality and relevancy of the disclosure to the

2011See, e.g., Milavetz, supra at 1330 (requirement that debt relief agencies make required disclosure in advertisements operates as ban on advertising unless disclosure is made); Zauderer, supra at 633 (requirement that attorneys advertising contingent fee arrangements make required disclosures operates as ban on advertising contingent fee representation without disclosures).

2011As for the claim of missing free cash flow estimates that provided the basis for injunctive relief in Maric Capital Master Fund, Ltd. v. PLATO Learning, Inc., 11 A.3d 1175, 1178 (Del.

2011See Thompson, supra at 376 ; Central Hudson, supra at 570-571 ; Virginia Bd. of Pharmacy, supra at 771 n.24.

2011In addition, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech,” Zauderer, supra at 651 , the Court has repeatedly stated in commercial speech cases that a disclosure requirement is a less burdensome and more appropriate alternative.

2011Bulldog further argues that, even if the prohibition on general solicitation is incidental to a disclosure scheme, the standard articulated in Zauderer, supra at 651 , is not applicable because that case asks whether a disclosure requirement is “reasonably related to the State’s interest in preventing deception of consumers,” and no deception is alleged in this case; instead, the parties stipulated that the information on Bulldog’s Web site and in its direct e-mail communication with Hickey was not misleading.

2000Id. at 568-70 (footnotes omitted).

1999See Energy Resources Corp. v. Porter, 14 Mass. App. Ct. 296, 299-302 (1982).

1997The disclosure requirement takes from the fiduciary the power to decide whether the opportunity or self-dealing transaction is in the corporation’s interest and removes the temptation posed by “a conflict between self-interest and integrity.” Durfee, supra at 198 , quoting Michoud v. Girod, 45 U.S. (4 How.) 503, 555 (1845).

1977The question which the trial judge excluded was: “Your informant was not [D— T — ], is that correct?” At the bench conference which followed, defense counsel indicated that the reason for his question was that he had “represented [D— T — ]; if she’s the informant.” The trial judge indicated his understanding of the disclosure requirement but stated, “Well, in this particular case it doesn’t make any difference who the informer was.” See Commonwealth v. Crespo, 3 Mass. App. Ct. 497, 499-500 (1975).

1975In other words, the defendant has some obligation to show an exception to the privilege that the informer remain anonymous, since the privilege is meant to encourage “‘every citizen’ in his ‘duty ... to communicate to his government any information which he has of the commission of an offense against its laws.’ Worthington v. Scribner, 109 Mass. 487, 488 (1872),” quoted in Commonwealth v. Ennis, 1 Mass. App. Ct. 499, 501 (1973).

1975Cf. United States v. Harriss, 347 U. S. 612, 625-626 (1954) (disclosure of paid lobbyists). 5 There is, however, significant authority that a disclosure requirement relating to election pamphlets cannot survive a First Amendment challenge.

1975In other words, the defendant has some obligation to show an exception to the privilege that the informer remain anonymous, since the privilege is meant to encourage “‘every citizen’ in his ‘duty ... to communicate to his government any information which he has of the commission of an offense against its laws.’ Worthington v. Scribner, 109 Mass. 487, 488 (1872),” quoted in Commonwealth v. Ennis, 1 Mass. App. Ct. 499, 501 (1973).