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).
"[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.
"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 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 order regarding remote depositions, May 26, 2020
- Uniform Small Claims Rules, see rule 5
- Uniform Rules on Subpoenas to Court Officials
- Massachusetts Superior Court Rules, see rules 9A–9C, 30–30B
- Massachusetts Superior Court Standing Order 1–88, Time Standards
- 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
- Massachusetts Housing Court Standing Order 1–96, Filing Written Discovery Materials in Civil Cases
- Housing Court Department Standing Order 1–04, Time Standards
- Massachusetts Juvenile Court Rules for the Care and Protection of Children, see rules 9, 13
- Massachusetts Juvenile Court Standing Order 2–07, Time Standards
Forms and sample letters, Mass Legal Help
Sample forms for use in a debt collection suit. 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)
Regarding 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.
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, sample interrogatories and request for production of documents.
The process of exchanging information in Family and Probate Court: discovery, mandatory disclosure and subpoenas, Neighborhood Legal Services, May 2000.
Information about the discovery process in Probate and Family Court, covering mandatory disclosure, subpoenas, and formal discovery.
Represent yourself in court: how to prepare & try a winning case, Nolo, 2019
Includes information on starting your case, pretrial procedures, motions, opening statement, cross examination and more. Requires free library card for access.
Representing yourself in a civil case part VII: proceeding with a civil case. What is discovery, Mass. Trial Court.
- Bender's forms of discovery, Matthew Bender, loose-leaf.
- Discovery practice, Aspen Publishers, by Roger S. Haydock and Davide F. Herr, with supplements.
- The family lawyer’s discovery toolkit, MCLE, 2017
- Guerilla discovery, James Publishing, with supplement.
- Massachusetts deposition practice manual, MCLE, loose-leaf.
- Massachusetts discovery practice manual, MCLE, loose-leaf.
- Massachusetts e-discovery and evidence, LexisNexis
- Massachusetts litigation forms and analysis, by Anthony Doniger, Law Cooperative, loose-leaf.
- Massachusetts pleading and practice: Forms & Commentary, Bender, loose-leaf.
- Massachusetts practice v.49-49A (Discovery), Thomson/West, with supplement.
- Model Iinterrogatories, James Publishing, with supplement.
- Pretrial litigation primer, MCLE, 2014. Sections 4 and 5
- Effective depositions, American Bar Association Section of Litigation, 2010
- Effective depositions strategies and techniques, MCLE, 2005
- Effective discovery in employment litigation, MCLE, 2005
- Massachusetts civil pretrial practice, LexisNexis, chapters 7-10
- Preparing, taking and defending the business deposition: Strategies for Effectiveness in the Superior Court, MCLE, 2005
- Taking and defending a dynamite deposition in your next employment case, MCLE, 2010
|Last updated:||June 18, 2020|