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In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference to consider:
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) The timing and extent of discovery;
(6) The preservation and discovery of electronically stored information;
(7) Agreements or proceedings for asserting claims of privilege or of protection as trial preparation material after information is produced;
(8) The advisability of a preliminary reference of issues to a master;
(9) The possibility of settlement;
(10) Agreement as to damages; and
(11) Such other matters as may aid in the disposition of the action.
The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
(2014) The 2014 amendments are the first amendments to Rule 16 since the adoption of the Massachusetts Rules of Civil Procedure in 1973. They were part of a series of amendments concerning discovery of electronically stored information. For background, see the 2014 Reporter's Notes to Rule 26.
Rule 16 has been amended to add three discovery provisions to the listing of considerations at a pre-trial conference: (5) "The timing and extent of discovery;" (6) "The preservation and discovery of electronically stored information;" and (7) "Agreements or proceedings for asserting claims of privilege or of protection as trial preparation material after information is produced." The items previously designated as (5) through (8) have been renumbered as (8) through (11). The new items are consistent with topics added to Rule 16 of the Federal Rules of Civil Procedure in 2006, and are appropriate items for a judge to consider in making a pre-trial order regarding discovery.
Rule 16 conferences that deal with discovery of electronically stored information may be of significant value to the parties and to the court. New item (6) makes specific reference to consideration at the pre-trial conference of matters relating to electronically stored information. Conferences with the court in cases involving discovery of electronically stored information may be particularly appropriate given the complexity and costs involved in electronic discovery.
Various court departments currently require a case management conference and a scheduling order by virtue of Standing Orders or internal rules. The amendments to Rule 16 do not alter the language of Rule 16 that "a court may in its discretion" order a conference. Courts that require case management conferences by virtue of Standing Orders or internal rules should consider adding specific references to the three items that are now part of Rule 16.
The 2014 amendments also added language to the first sentence of the rule to make clear that a court may order unrepresented parties to appear at a conference. The addition of the reference to unrepresented parties conforms this portion of the first sentence of Rule 16 to a similar amendment to Rule 16 of the Federal Rules of Civil Procedure in 1983.
(1973) Although in recent years, the Superior Court has been unable to make consistent systematized use of pre-trial conferences, the device is well-worth preserving, regulating, and encouraging. Coupled with the liberal discovery provisions in the Rules, pretrial procedure can simplify and expedite every type of litigation. The basic principle of Rule 16, including the trial judge’s power to modify the pre-trial order “to prevent manifest injustice,” are quite familiar. Gurman v. Stowe-Woodward, Inc., 302 Mass. 442, 444-445, 19 N.E.2d 717, 718 (1939) and cases cited; Mitchell v. Walton Lunch Co., 305 Mass. 76, 80, 25 N.E.2d 151, 154 (1940).
The word “master” as used in Rule 16(5) includes an auditor. See Rule 53(a). The changes in Rule 16(5) from Federal Rule 16(5) are designed to reflect Massachusetts practice. Because an auditor’s findings are by their very nature evidence utilizable before a jury (see, e.g., Roth v. Rubin Bros., 344 Mass. 604, 607, 183 N.E.2d 856, 858-859 (1962)), it has not been considered necessary to say so. Rule 16(6) and Rule 16(7), taken from Superior Court Rule 58, are designed to emphasize that agreements about money, in either partial or full resolution of the dispute, are the most valuable by-products of a pre-trial system.