The scope of discovery
"Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." — Massachusetts Rules of Civil Procedure Rule 26(b)(1).
Discovery tools
Interrogatories
"[I]nterrogatories are written questions propounded to a party designed to elicit information useful in the prosecution or defense of a suit. The responding party must sign answers to interrogatories under the pains and penalties of perjury; therefore, the signed answers are the equivalent of sworn testimony given under oath." — Massachusetts Discovery Practice, s. 10.1.
Depositions
"A deposition is like testimony in court--under oath--but it occurs before trial, outside the courtroom, and without a judge or jury present. While depositions have a number of uses, parties take depositions primarily in the hope of uncovering information that supports their legal claims and undermines the other side's legal claims." — Nolo's Deposition Handbook, p. 2.
Requests for admissions
"Written requests for admission . . . provide parties with a method by which admissions of facts may be obtained and used in support of, or in opposition to, summary judgment motions or at trial." — Massachusetts Practice v.49A (Discovery), s. 10:1.
Requests for production (document requests)
A "written request that another party provide specified documents or other tangible things for inspection and copying." Black's Law dictionary. A request for production "is focused on the discovery of tangible (rather than testimonial) evidence and provides for the discovery of all types of tangible evidence, such as documents, photographs, electronic data, or other objects relevant to the litigation." — Massachusetts Practice v.49 (Discovery), s. 6:1.
Requests for permission to enter upon land
Mass. R. Civ. P. 34 "allows you to request an opportunity to enter upon land in the possession or control of another party so that you may test, photograph, sample, or otherwise inspect relevant conditions, objects, or operations on the premises." — Massachusetts Discovery Practice, s. 11.1.
Physical and mental examinations
"In many civil actions, the medical status of a party is at issue. This may be because the extent of an ongoing injury is unresolved, a party is seeking damages for mental injury, or the nature of the injury is in dispute. In order to allow the parties a fair opportunity to explore these issues, the rules of discovery permit the physical and mental examinations of individuals, although with some significant limitations." — Massachusetts Discovery Practice, s. 14.1.
Massachusetts laws
MGL c.233, §§ 24-63 Witnesses and evidence
MGL c.233, § 79G Evidence: medical and hospital services
Court rules
- Massachusetts Rules of Civil Procedure, see rules 26–37, 45
- Massachusetts Guide to Evidence
- Massachusetts Trial Court Uniform Summary Process Rules, see rules 6–7
- Supreme Judicial Court updated order regarding remote depositions, October 23, 2020
- Uniform Small Claims Rules, see rule 5
- Uniform Rules on Subpoenas to Court Officials
Superior Court
- Massachusetts Superior Court Rules, see rules 9A–9C, 30–30B
- Massachusetts Superior Court Standing Order 1–88 Time Standards
District/Municipal Court
- Massachusetts District/Municipal Courts Supplemental Rules of Civil Procedure, see rules 105, 111
- Joint Standing Order 1–04 Civil case management
- Joint Standing Order 2–04, Time standards for civil cases
Probate and Family Court
- Massachusetts Supplemental Rules of the Probate and Family Court, see rules 27A, 45, 401 & 410
- Massachusetts Rules of Domestic Relations Procedure, see rules 26–37, 45
- Massachusetts Probate and Family Court Standing Order 1–06 Case management and time standards for cases filed in the Probate and Family Court Department
Housing Court
- Massachusetts Housing Court Standing Order 1–96 Filing written discovery materials in civil cases
- Housing Court Department Standing Order 1–04 Time standards
Juvenile Court
- Massachusetts Juvenile Court Rules for the Care and Protection of Children, see rules 9, 13
- Massachusetts Juvenile Court Standing Order 2–18 Time standards
Land Court
- Massachusetts Rules of the Land Court, see rules 7-8
- Land Court Standing Order 1–04 Time standards for cases filed in the Land Court Department
Forms
Forms and sample letters, Mass. Legal Help.
Sample forms for use in a debt collection suit but can be edited for use in other types of cases. Includes interrogatories, request for admissions, and request for production.
Selected case law
Caron v. General Motors Corp., 37 Mass. App. Ct. 744 (1993)
"Requests for admissions should be thoughtfully structured to settle before trial issues as to which there may be no real contest. It is an abuse to deluge an opposing party with successive banks of requests for admissions hoping that he may inadvertently give away his case."
Doe v. Senechal, 431 Mass. 78 (2000)
A physical or mental examination is allowed only if the condition of the person to be examined is "in controversy," meaning his or her condition "relates directly to the proof or defense of the underlying cause of action," such as the condition of "a plaintiff in a negligence action who asserts mental or physical injury, or a defendant who asserts his mental or physical condition as a defense to a claim."
Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544 (2002)
Nonparties to litigation do not have a duty to preserve evidence that is within their control for use by the parties even if they know that the evidence is relevant to the litigation.
GTE Products Corp. v. Stewart, 414 Mass. 721 (1993)
"The purposes for which the discovery rules exist 'are to avoid surprise and the possible miscarriage of justice, to disclose fully the nature and scope of the controversy, to narrow, simplify, and frame the issues involved, and to enable a party to obtain the information needed to prepare for trial.'"
Gunn v. New York, New Haven & Hartford R.R. Co., 171 Mass. 417 (1898)
A person who is answering interrogatories as the representative of a business entity (e.g., the president of a corporation responding to interrogatories served on the corporation) has a duty to make reasonable inquiry of all of the business's employees and agents to obtain information that will help the person answer the interrogatories.
Kippenhan v. Chaulk Services, Inc., 428 Mass. 124 (1998)
A party is not responsible for the loss, destruction, or alteration of evidence unless the party knew or should have reasonably known, at the time the items were lost, destroyed or altered, that the items might be evidence in a possible court action.
In the Matter of a Subpoena Duces Tecum, 445 Mass. 685 (2006)
Discusses the broad scope of discovery.
Reynolds Aluminum Building Products Co. v. Leonard, 395 Mass. 255 (1985)
Failure to respond to a proper request for admissions establishes the truth of the admissions for purposes of the case.
Storm v. American Honda Motor Co., Inc., 423 Mass. 330 (1996)
“broad and literal treatment” to be given to discovery rules.
Web sources
Discovery: an overview, The Legal Information Institute at Cornell University Law School.
A brief explanation of the discovery process. Focus is on the Federal Rules, but much of the information applies to states such as Massachusetts as well.
Discovery: representing yourself in an eviction case, Mass. Law Reform Institute, revised May 2017.
Booklet with forms for a tenant to use to obtain discovery during an eviction case.
Family law advocacy for low and moderate income litigants, 3rd ed., MCLE, 2018.
Chapter 2: Overview of probate and family court, Discovery, page 19 with sample interrogatories and request for production of documents.
Representing yourself in a civil case part VII: proceeding with a civil case, Mass. Trial Court.
Information about time standards and deadlines, case management conferences, discovery, and pre-trial conferences.
Print sources
With forms
- Bender's forms of discovery, Matthew Bender, loose-leaf, with supplements.
- Discovery, 3rd. ed. (Mass Practice v. 49-49A), Thomson Reuters, 2017 with supplement.
- Discovery practice, 5th ed., Wolters Kluwer Law & Business, loose-leaf, 2009.
- The family lawyer’s discovery toolkit, MCLE, 2018.
- Guerilla discovery, James Publishing, 2014, with supplements and CD-ROM.
- Massachusetts discovery practice, 4th ed., MCLE, 2021, loose-leaf.
- Massachusetts e-discovery and evidence, annual, LexisNexis.
- Massachusetts litigation forms and analysis, 1995, by Anthony Doniger, Law Cooperative Publishing, loose-leaf with updates.
- Massachusetts pleading and practice: Forms & commentary, Matthew Bender, loose-leaf with updates.
- Model interrogatories, 2014, James Publishing, with supplements.
- Nolo's deposition handbook by Paul Bergman, Nolo, 2018.
- Pretrial litigation primer, MCLE, 2014. Sections 4 and 5.
Without forms
- Effective depositions, American Bar Association Section of Litigation, 2010.
- Effective deposition strategies and techniques, MCLE, 2005.
- Effective discovery in employment litigation, MCLE, 2005.
- Massachusetts civil pretrial practice, LexisNexis, annual, Chapters 7-10.
- Preparing, taking and defending the business deposition: Strategies for Effectiveness in the Superior Court, MCLE, 2004.
- Represent yourself in court : prepare & try a winning civil case by Paul Bergman, Nolo, 2019.
- Taking and defending a dynamite deposition in your next employment case, MCLE, 2010.
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| Last updated: | February 1, 2023 |
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