What is Discovery and Why is it Helpful?
Discovery is a process for you to request the information and documents the agency has about your case. Discovery lets you get information and documents the agency staff plans to use as evidence at the hearing. Also, you can get information and documents the agency has that are reasonably connected to your case.
Discovery can help you understand what information the agency has about your case. It helps you prepare your case and helps prevent surprises at the hearing.
Types of Discovery
The most common and efficient method of obtaining discovery is through voluntary, informal communications among the parties. If there are documents or information that you need and that the opposing party may have, you are encouraged to simply ask the opposing party’s lawyer for them. The opposing party’s lawyer may also make similar informal requests to you.
If you are not receiving the documents and information you need through voluntary discussions, you can also obtain discovery through formal procedures called (a) document requests, (b) depositions, and (c) interrogatories. In most cases, unless you agree to give the agency more time, it must answer your requests and interrogatories within 30 days.
Document requests, when sent to the other party, require the other party to give you specific documents for your inspection and copy. To make a document request, send a written request to the other party. When the other party is a state agency, send the request to the agency’s lawyer. 801 C.M.R. 1.01(8)(b).
A deposition is oral testimony given by a witness or party under oath, as part of discovery process. In a deposition, you may ask a witness or party questions, and the other party can ask questions as well. Depositions are not usually permitted in cases before DALA. Among other things, they are only available if the person is not available to attend the hearing or it would be a hardship for them to attend. To request a deposition, you must file a motion specifying the name and address of each person you are planning to depose and the reasons for the deposition. 801 C.M.R. 1.01(8)(c)-(d).
Interrogatories are questions about the case that you can send to the other party. The other party must answer each question, unless it objects to a question on legal grounds. You can send interrogatories only with the magistrate’s permission. Usually, no more than 30 questions will be allowed. People often use interrogatories to get more detail about the evidence the other side has. You may not send any interrogatories to the other party later than 45 days before your hearing date. 801 C.M.R. 1.01(8)(g)-(h).
Who Gets to Participate in Discovery?
Every party in a case can make discovery requests. It is important for you to respond to discovery. In most cases, you have 30 days from the day you received discovery from the agency to answer and/or object to the requests.
Can Discovery Be Requested from Non-Party Individuals or Entities?
Yes. Parties can ask for subpoenas, which are formal orders requiring a person or organization to provide documents or testify at a hearing. Subpoenas can be used for both parties and non-parties. See the page Subpoenas in administrative proceedings.
Do Not File Discovery Requests, Responses, or Productions with DALA
You should not file discovery requests, responses, or productions with DALA in the first instance. If you have sent formal discovery requests to the other party and have not received satisfactory responses by the applicable deadline, you may file a “motion to compel.” That type of motion asks the magistrate to order the other party to comply with your discovery requests. If you need to file a motion to compel, you should attach the discovery requests and responses in dispute to the motion when you file it with DALA.