(1) Do you use a customized Rule 16 case management conference notice or the standard notice to appear?
What, if anything, do you instruct the parties to file in connection with a Rule 16 case management conference beyond what is in the standard notice to appear?
Salinger, J.: No. The standard notice has been working for me. But please file your Rule 16 submission in advance. If you are filing something electronically, it can take up to a few days for it to appear on the docket and become available to judges and court staff. And BLS judges are very busy. If you submit things just before a conference or hearing, we will not have time to review and think about it in advance.
Krupp, J.: I usually use the standard notice. If, in reviewing the status of a case, it appears that there has been no action in the case, or the case has somehow fallen between the cracks, I will issue a customized order to schedule a Rule 16 conference or a status conference as seems appropriate.
Kazanjian, J.: The standard notice is fine.
Squires-Lee, J.: The standard notice is fine.
(2) Do you have any requirements or preferences for who must appear for the case management conference? If so, what are they?
Salinger, J.: A lawyer appearing at a case management conference must have the authority and all information needed to agree on a case schedule and any other case management issues that need to be resolved.
Krupp, J.: No, but the lawyer appearing must have authority to address all issues that may come up during the Rule 16 conference.
Kazanjian, J.: The lawyer who appears before me must have the authority to handle any issue that may come up.
Squires-Lee, J.: I agree. A myriad of both substantive and procedural decisions must be made at a Rule 16 conference and the lawyers who appear must have the authority to address the issues and bind the parties.
(3) Do you have any requirements or preferences for setting tracking order deadlines? If so, what are they?
Salinger, J.: In a typical case, I aim to set deadlines for completing all fact discovery, expert disclosures (if needed) and expert depositions (if appropriate), and a date for a further scheduling conference to discuss what comes next. I do not automatically set dates for summary judgment motions, because in most cases the parties cannot tell at the outset whether there is any reasonable likelihood that the case can be resolved by summary judgment. But I will set additional or more detailed deadlines if doing so will help the parties move the case along.
I will generally not set a trial date until after all fact discovery and expert disclosures are complete, summary judgment motions have decided or skipped, and the parties are appearing at a final pre-trial conference after having prepared a joint final pre-trial memorandum.
Krupp, J.: I aim to set a schedule that will work for all parties given their other commitments, but that will not have to be extended. The parties should think about and propose dates assuming that the dates will not be extended for convenience. At an initial Rule 16 conference, I will set dates for the close of fact discovery and for another Rule 16 conference 30-60 days before the close of fact discovery. I may set other interim dates depending on the needs of the case. At a Rule 16 conference towards the end of discovery, I will set dates for Rule 56 briefing, if applicable; a final pretrial conference; and sometimes trial, particularly in multi-party cases or cases requiring the coordination of many lawyers, the availability of expert witnesses, speedy trial rights, or other extenuating circumstances.
Kazanjian, J.: I generally seek to schedule deadlines for fact and expert discovery. I will set Rule 56 deadlines when there is a real likelihood that Rule 56 motions are going to be filed. I will sometimes set a hearing date for the Rule 56 motion that will become Final Pre-Trial Conference if no motion is filed. I also will set interim status dates if that would be useful for advancing the case.
Squires-Lee, J.: I will set deadlines that work for the case, the parties, the lawyers, and the issues. One of the benefits of the BLS is the ability to have close case management from the judges, so I agree that setting deadlines one step at a time and scheduling further case management conferences can facilitate efficiency. For example, I can foresee setting a deadline for fact discovery followed by a Rule 16 conference to address expert disclosures and discovery, if any, and summary judgment deadlines.
(4) During the ongoing pandemic, are you conducting Rule 16 conferences via videoconference or in the courtroom? Will that change post-pandemic?
Salinger, J.: I think that Rule 16 conferences work well by video conference. Superior Court Standing Order 1-22 identifies matters that presumptively are to be held by video conference in civil actions, including scheduling and case management conferences.
Please let the session clerk know if you have a new case, or a case that was newly transferred to the BLS, that is ready for and needs an initial BLS scheduling conference. And please let the clerk know if you have an older case that would benefit from a status or scheduling conference to address new issues or changed circumstances.
Krupp, J.: Mostly by videoconference. An initial Rule 16 conference is usually perfect for using a videoconference. A Rule 16 conference held well into the case may be better in person. There are situations where it is clear to me that the parties are not conferring sufficiently before filing motions or are not getting along. In those instances, I am more inclined to see the parties in person. For case-specific or personal reasons, the lawyers may ask that a Rule 16 conference be held in person or by videoconference. Absent a good reason, I am likely to agree to such requests.
Kazanjian, J.: While I have a strong preference for in-person hearings, I usually conduct Rule 16 conferences by videoconference. However, in order to conduct a hearing by videoconference, the attorneys need to have adequate technology that allows the court to see and hear counsel during the conference. The attorneys must also have adequate familiarity with operating the technology and must present in a professional manner as if we are in court. I will not conduct hearings of any kind by telephone only. If you would prefer to appear in person for a Rule 16 conference, please let the clerk know and I will be happy to accommodate that.
Squires-Lee, J.: Initial Rule 16 conferences are well suited to video conference.
(5) Do you ever phase or bifurcate discovery? If so, when and how?
Salinger, J.: Yes. Sometimes all parties agree on phasing discovery. In other cases a party may convince me that is the most efficient way to proceed. If early resolution of a key issue will significantly streamline a case or facilitate settlement talks, discovery about that issue can readily be separated from other discovery, and doing so will not unduly delay resolution of the dispute if full discovery ends up being needed, then phasing of discovery makes good sense.
Krupp, J.: Yes. Bifurcation of discovery makes sense to contain costs and allow the parties to focus their efforts on a single issue that could substantially narrow or resolve the case.
Kazanjian, J.: I consider bifurcation of discovery as an excellent way to contain costs and narrow the issues. I encourage the parties to be creative in this regard.
Squires-Lee, J.: Absolutely. There are many cases in which discovery on a potentially viable dispositive issue, for example, should proceed first and can significantly streamline the case. If counsel believe bifurcated discovery may be appropriate for whatever reason they should not hesitate to raise at the initial Rule 16 conference.
(6) Are there situations under which you do not grant a motion for a confidentiality order or to file papers under seal, even if the parties agree?
Do you have any specific requirements for granting confidentiality orders and/or motions to file papers under seal?
Salinger, J.: Agreement of the parties is never sufficient to justify impounding documents filed in court.2 I will always deny a motion to impound something based solely on the parties’ agreement that they want to keep something secret. Under Massachusetts law, I may impound a document only if a party shows there is good cause to do so.
Necessary Showing. A party seeking impoundment must explain the nature of the information they seek to protect and why the private interest in keeping that information confidential outweighs the strong public interest in being able to access judicial records.3 It is not enough merely to assert that the party keeps the information secret; counsel should describe the nature of the information so that the judge will understand why maintaining confidentiality is important. If a motion to impound does not attempt to make this showing, I will deny it without prejudice and give the parties a second chance.
Redacted Versions. Where only part of a document is subject to impoundment, you should submit a redacted version that will be available to the public.
Hearing, or No Hearing. The general rule is that judges must hold a hearing on a motion to impound. But no hearing is required if “the reason for impoundment is to protect trade secrets or other confidential research, development, or business information.”4 This exception applies almost every time a motion to impound is filed in the BLS. When it does apply, it is a helpful to note in an impoundment motion that no hearing is required because the request falls within the scope of this exception.
Impoundment vs. Sealing. Finally, parties that want to limit public access to a document filed in a Massachusetts state court should seek “impoundment” rather than to have the materials accepted “under seal.” The Supreme Judicial Court says that although these terms are “closely related and often used interchangeably,” they are in fact “meaningfully different.”5 When documents are “impounded,” they are kept separate from the rest of the case file and are not available for public inspection, but they may be viewed by the parties. In contrast, “[a] document is normally ordered ‘sealed’ when it is intended that only the court have access to the document, unless the court specifically orders limited disclosure.”6 And the SJC has suggested that judges should be more hesitant to seal documents than to impound part of a case file.7 So, unless a party is trying to keep other parties from seeing something filed with the court, they should request “impoundment” rather than “sealing,” and make sure they comply with the Uniform Rules on Impoundment Procedure.
Krupp, J.: I generally allow motions for entry of a confidentiality order to govern discovery, although I look at the proposed orders carefully to see whether they purport to impose obligations on the court, or unduly authorize disclosures under an “attorneys’ eyes only” designation. See Formal Guidance of the Business Litigation Sessions Regarding Confidentiality Agreements (Jan. 2, 2008).8
As a practical matter, it is difficult for me to assess whether a particular document or information is confidential without adequate explanation from counsel. The parties should not assume that motions to impound, even if unopposed, will be granted absent an adequate explanation.y of a confidentiality order if the parties agree and it does not contradict or violate the laws/rules regarding impoundment and sealing.
Kazanjian, J.: I agree with Judge Salinger on motions to impound or seal. I am likely to allow a motion for the entry of a confidentiality order if the parties agree and it does not contradict or violate the laws/rules regarding impoundment and sealing.
Squires-Lee, J.: I agree with Judge Salinger. I will allow an agreed-upon motion for a confidentiality order that complies with the law described above and will closely examine motions to impound alleged confidential information.
(7) Do you have guidance about documents that you will impound pursuant to the Trial Court’s Uniform Rules on Impoundment Procedure and any documents by category that you are unlikely to impound?
Salinger, J.: In BLS cases, most successful requests for impoundment are carefully limited to trade secrets or other confidential research, development, or business information. I rarely am convinced to impound other categories of documents.
Krupp, J.: I will usually order impoundment of the information listed in Rule 7(e) of the Uniform Rules of Impoundment Procedure, and confidential personal information on adequate explanation and justification.
Kazanjian, J.: Trade secret and confidential business information as well as any personal identifying information such as social security numbers, telephone numbers and the like.
Squires-Lee, J.: Trade secret information, confidential business information, private personal information, human resources information about named non-party individuals, medical information.
(8) With respect to confidentiality / protective orders, what is your view about documents identified as Attorneys’ Eyes Only?
Salinger, J.: A category of “Attorneys’ Eyes Only” documents is a bad idea. Counsel should not draft or agree to a proposed protective order that can be used to keep anyone other attorneys handling the litigation from seeing certain key documents. Where a party is a business entity, it may be appropriate to limit which client representatives or categories of client representatives may see certain, narrow kinds of documents. But a lawyer cannot prepare and try a case if only they, and not their clients, are permitted to see certain things.
Krupp, J.: I will allow the parties to agree to an “Attorneys’ Eyes Only” designation, but believe that such a designation should be used extremely sparingly for the reasons Judge Salinger has listed. Although I have seen parties agree to a variety of formulations of when an “Attorneys’ Eyes Only” designation may be used, I often think of an “Attorneys’ Eyes Only” designation being limited to documents where there is a substantial likelihood that the disclosing party will suffer irreparable harm if the document is disclosed to the receiving party’s client. With that said, because (thankfully!) I am rarely asked to decide challenges to confidentiality designations, it is difficult for me to assess how often “Attorneys’ Eyes Only” designations are used and whether they actually create a practical impediment to lawyers advising their clients.
Kazanjian, J.: I agree with Judges, Salinger, Krupp and Squires-Lee. Consider being specific about the individuals the attorney needs or wants to assist in reviewing documents.
Squires-Lee, J.: In the vast majority of cases, the highest degree of confidentiality must include certain, perhaps identified and agreed-upon, client representatives to insure attorneys are able to consult with their clients and obtain the necessary information to advise their clients.
(9) What is your preference with regard to courtesy copies of pleadings, motions, and memoranda?
Salinger, J.: I have one answer for electronically-filed documents, and a different one for filings made in paper form.
The BLS judges recently issued a Formal Guidance, available on our website, that asks for courtesy copies of any electronically-filed papers that need immediate attention, electronically-filed memoranda longer than twenty pages, and electronically-filed papers with exhibits or attachments that exceed twenty pages in total. It explains that both paper and digital courtesy copies of these categories of electronically-filed documents are useful.9
Courtesy copies should be clearly marked as courtesy copies.
When documents are filed in paper form, I do not need or want courtesy paper copies. Courtesy electronic copies of voluminous exhibits that were filed in paper form, either on storage device or through accessible cloud storage, are very helpful.
Krupp, J.: Please see Formal Guidance. I do not need a courtesy copy of documents filed in paper form. If a courtesy copy is filed, it should be clearly marked as a courtesy copy.
Kazanjian, J.: Please see Formal Guidance. I also do not need a courtesy copy of documents filed in paper form.
Squires-Lee, J.: I agree with Judge Salinger. Courtesy copies of proposed findings of fact and rulings of law in cases tried to the Court, submitted in advance of the trial and in word format, not as a pdf, also will be extremely helpful.
(10) How can the parties and lawyers better use Superior Court Rule 20 to streamline and expedite their case?
Salinger, J.: Superior Court Rule 20 allows and encourages parties to propose, and ideally agree upon, case management rules that will allow for faster and less expensive resolution of their dispute. Parties can craft ground rules that will let a BLS case move forward with the speed and cost savings associated with arbitration, while letting the case be managed and perhaps be decided by an experienced Superior Court judge—at no extra cost to the parties—who will be able to give the case the attention it deserves (because of the smaller caseloads in the BLS sessions) and apply well understood law and rules of evidence. I especially encourage the parties to consider agreeing to the following.
Reasonable Discovery Limits. Discovery in high-stakes civil disputes keeps metastasizing. I see more and more requests limits to be imposed after the opposing party has noticed dozens of depositions or demanded responses to hundreds of requests for admission. I encourage counsel to propose reasonable limits on depositions, interrogatories, and requests for admission in the initial case scheduling order.
Waiving Findings of Fact in Bench Trials. When a case is being tried without a jury, try to convince your client and all other parties to waive the default rule requiring a judge to make detailed findings of fact, and agree instead to submit detailed special questions for the judge to answer. Your clients will avoid the cost of having you prepare proposed findings of fact and rulings of law, and get a much faster decision from the judge.
I am happy to have the equivalent of a jury charge conference, and to prepare (with the parties’ input) written instructions to myself, to make clear how I will instruct myself on the governing law.
I am also happy to go beyond the short kinds of verdict slips that we typically submit to juries, which often just ask is there liability (yes or no) and, if so, what dollar compensation is appropriate. Some parties have asked me also to answer long sets of special questions about detailed factual issues that may not be dispositive, but might help guide may thinking about the ultimate questions in the case.
If we have the equivalent of a jury charge conference and I answer all the special questions that you and your client think are important, that should address any concern that your client will inadvertently lose the opportunity to have a legal error corrected on appeal by waiving detailed findings.
Krupp, J.: Rule 20 encourages parties to think outside the box. What do the parties need for the particular case? Is there one key deposition needed on each side and then a stay of discovery while the parties engage in mediation? Is the case so contentious that the parties need scheduled hearings on discovery disputes every 60 days? Will a modified presentation of discovery disputes through the exchange of short letters to the court be sufficient to frame most of the discovery disputes?
In my view, Rule 20 provides a non-exclusive list of discussion topics for the initial Rule 16 conference, interim status conferences, and the final pretrial conference. What the parties want/need at the beginning of the case may be different from their assessment after they have taken four depositions, or after the grant of part of a summary judgment motion. The option to tailor the court’s handling of a case to the unique needs of the case should always be on the table.
I also echo Judge Salinger’s encouragement for the waiver of detailed findings and rulings after a jury-waived trial, and for the presentation of expert testimony through affidavits (even if only in lieu of, or as a supplement to, direct examination) at a jury-waived trial, under Rule 20(2)(h). These are innovations that streamline the trial process and result in faster, equally reliable results.
Kazanjian, J.: I encourage Rule 20 conferences for all the reasons outline by my colleagues. I have found bench trials with waivers of detailed findings to be a very efficient and effective way to resolve disputes.
Squires-Lee, J.: Superior Court Rule 20 is underutilized and should be considered a case management tool by all counsel. I encourage the discussion of appropriate discovery limitations at the initial Rule 16 conference. I encourage the use of Superior Court Rule 20 to forego written findings and rulings of law in bench trials and, like Judge Salinger, will require counsel to file a joint statement, or competing statements if they are unable to agree, of the applicable law. The verdict I issue on the factual special questions presented will make clear the law I applied.
(11) Do you have any other case management tips or preferences for BLS cases?
Salinger, J.: Do not hesitate to ask the session clerk (after speaking with opposing counsel, of course) to schedule a case management conference if one would be helpful. We aim to have an initial scheduling conference soon after a case is filed in or transferred to the BLS. If the case needs immediate attention, or if several months go by and no Rule 16 conference has been scheduled, ask the clerk for help. And if something arises in the middle of a case that can most efficiently be resolved through a conference without formal motion practice, let me clerk know and will schedule a time to meet on the record.
I agree with Judges Krupp and Kazanjian on the importance of conferring with other parties before presenting an issue to the court.
Krupp, J.: The key to an effective Rule 16 conference is communication between counsel in advance. It is usually obvious to the court when the parties have conferred in an effort to agree to a workable schedule and when they have not.
We try to be flexible and available. If you think your case could benefit from a conference with the court, please contact the session clerk and we will likely schedule a conference. In BLS, we have the flexibility to see the parties quickly on disputed matters. Often a status conference can save the parties hours of work on motions and cross-motions.
Kazanjian, J.: It is very important that the parties confer before presenting the issues to the court. If I do not feel that you have made a good faith effort to resolve an issue, I may require further consultation. I urge you to go beyond just sending emails to each other. It is often more productive to have a real conversation with opposing counsel before presenting matters to the court, and to think seriously about ways you are willing to compromise on issues.
Squires-Lee, J.: I agree with all my colleagues.
| Date published: | April 1, 2022 |
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| Last updated: | May 15, 2024 |