Public Law

Updates on Public Law in Massachusetts from Anderson & Kreiger LLP


SJC: Public Entities Can Assert Work Product Protection in the Face of Discovery and Public Records Requests

SJC rejects forcing the government to “operate in a fishbowl.”

May 15, 2015 – The Massachusetts Supreme Judicial Court (SJC) has swept away years of uncertainty over whether public entities can assert work product privilege to protect from disclosure documents prepared in anticipation for litigation or trial: “We no longer hold to the view declared in [the] General Electric [case] that there are no implied exemptions to the public records act, and that all records in the possession of a governmental entity must be disclosed under the act unless they fall within one of the exemptions identified in” the public records act.”

This new SJC ruling (DaRosa, et al. v. City of New Bedford v. Monsanto Company, et al.) puts Massachusetts public entities on nearly equal footing with their private counterparts, whose work product is protected from disclosure under the discovery rules (Mass. R. Civ. P. 26 (b) (3)). Public entities (including their experts and counsel) can now shield all “opinion” work product and some “fact” work product from both discovery requests and public records requests by opposing litigants.

Public entities are on much firmer footing today, knowing that “frank discussion[s] of legal or policy matters” can now be put in writing and enjoy at least a qualified protection from disclosure at the critical time of litigation. In this case, the City of New Bedford sought to block the disclosure to opponents of a scientific expert report and related material prepared in connection with litigation over the City’s potential environmental liability.

The Court found that work product prepared by or for a public entity may fall within the public records act’s “policy deliberation” exemption (G. L. c. 4, § 7, Twenty-sixth (d)), which shields from disclosure inter- and intra-agency documents concerning policy positions that the agency is developing. This exemption does not, however, shield the “reasonably completed factual studies or reports” on which the agency bases its policy positions. In so finding, the SJC made clear that a public entity’s work product protection is not as broad as the protection afforded private litigants under Mass. R. Civ. P. 26 (b) (3).

Because of the wording in the statutory exemption, the SJC distinguished between “opinion” work product and “fact” work product. Opinion work product consists of “the mental impressions, conclusions, opinions, or legal theories” of a party’s representative prepared in anticipation of litigation or for trial by or for a party or its representative. Opinion work product is protected from discovery to the extent provided under Mass. R. Civ. P. 26(b)(3) and under the public records act, “even where the opinion work product has been made or received by a State or local government employee.” The SJC has not gone so far as to say that the protection of opinion work product “is absolute,” but it has come very close: Compelled disclosure of opinion work product will occur, if at all, “only in rare or ‘extremely unusual’ circumstances.’”

Fact work product, on the other hand, consists of tangible work product concerning facts but not mental impressions. For fact work product, the SJC ruled that public litigants, unlike private parties, must disclose “reasonably completed” factual studies and reports, as described in the exemption. However, they can protect from disclosure factual studies or reports not yet reasonably completed as well as completed studies or reports (or portions of them) that are “interwoven with opinions or with analysis leading to opinions.”

DaRosa leaves room for future discovery battles in public sector litigation, such as: What is the line between “opinion” and “fact” – particularly where they are “interwoven” in one document? When is a factual study “reasonably completed”? Does work product protection extend beyond the litigation in which it is asserted?

Nonetheless, this is an important decision that will enable the Commonwealth, state agencies, cities and towns to better defend themselves in litigation and prosecute claims on behalf of the public.

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About the Author

Nina L. Pickering-Cook – Partner

Nina helps public and private sector clients navigate issues relating to real estate, construction, land use and public law, including litigation where necessary.

About the Author

Stephen D. Anderson – Partner

Steve represents clients with complex governmental, permitting, land use and environmental matters.

Please contact Steve with any questions at 617.621.6510 or

Posted In: Discovery, Public Records Requests

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