The Standing Advisory Committee on the Rules of Civil and Appellate Procedure solicits comments on amendments to Mass. R. Civ. P. 26(b)(5), Claims of Privilege or Protection of Trial Preparation Materials. The proposed amendments would make the provisions of the Massachusetts rule on privilege logs identical to those in the federal rule.

Mass. R. Civ. P. 26(b)(5), requiring a privilege log, was added to the rules in 2008 and requires a log that includes certain information, such as author(s), sender(s), recipient(s), date and type of document, when a party withholds otherwise discoverable information on the basis of privilege or protection. The federal rule on privilege logs, first adopted in 1993, requires parties to describe the nature of the material withheld in a manner that will enable other parties to assess the merit of the claimed privilege or protection. However, the federal rule does not require document-by-document logs, and allows for descriptions of privileged documents by category, in contrast to the detailed listing required by the Massachusetts rule. The SAC believes that the requirements of the Massachusetts rule should be simplified. Given the number of documents that may be at issue, especially with electronic discovery, the committee believes that preparing detailed logs for all withheld documents can be burdensome, and that the federal rule provides a better approach. Adoption of the language in the federal rule would have the benefit of allowing parties to consult federal case law.   

The proposed amendments appear at the links below, along with proposed Reporter's Notes. Comments should be directed to Christine P. Burak, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston, MA 02108 on or before February 28, 2017. Comments may also be emailed to christine.burak@sjc.state.ma.us. Comments received will be made available to the public.  

Mass. R. Civ. P. 26(b)(5) redline pdf format of Mass. R. Civ. P. 26(b)(5) redline - February 2017
Mass. R. Civ. P. 26(b)(5) clean copy pdf format of Mass. R. Civ. P. 26(b)(5) - February 2017
Proposed Reporter's Notes pdf format of Reporter's Notes-Mass. R. Civ. P. 26(b)(5)-Feb 2017