(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.
Krupp, J.: I use the standard notice.
Kazanjian, J.: The standard notice is fine.
Ricciuti, J.: The standard notice is fine thus far.
(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.
Ricciuti, J.: Same as my colleagues.
(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 will set additional or more detailed deadlines if doing so will help the parties move the case along.
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 only when there is a real likelihood that Rule 56 motions are going to be filed.
Ricciuti, J.: I generally set separate deadlines for completing fact and expert discovery, and typically set interim status dates when they are helpful. I will alter these practices at the parties’ request – preferably their joint request – to facilitate efficiency.
(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. I have conducted them that way since the Spring of 2020, expect to keep doing so.
Krupp, J.: Mostly by videoconference. I do not plan to have an across-the-board rule after the pandemic. 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.: I have a strong preference for in-person hearings. I will consider conducting Rule 16 conference by videoconference if requested. 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.
Ricciuti, J.: I strongly prefer in-person hearings, even for Rule 16 conferences. I will consider conducting Rule 16 conference by videoconference if requested in advance, but will in any event expect the lawyers to have had meaningful discussions in preparation for the hearing.
(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.
Ricciuti, J.: Same as Judge Salinger.
(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.
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.
Ricciuti, J.: Same as Judge Salinger.
(7) 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 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.
Ricciuti, J.: Please see Formal Guidance. I welcome courtesy copies, and request that they be clearly marked as such and delivered as promptly as possible. Please also alert the courtroom clerk that courtesy copies are coming.
(8) 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.
Ricciuti, J.: See above; I agree with all of my colleagues’ views.
| Date published: | April 1, 2022 |
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