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Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.
Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
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.
A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.
Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.
Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.
A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed - and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. The court, upon motion, may order the withholding party to provide such additional information as is necessary to assess the claim of privilege.
If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party shall promptly return, sequester, or destroy the specified information and any copies it has; shall not use or disclose the information until the claim is resolved; shall take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under Trial Court Rule VIII, Uniform Rules on Impoundment Procedure, for a determination of the claim. The producing party shall preserve the information until the claim is resolved.
In resolving any such claim, the court should determine whether:
(i) the disclosure was inadvertent;
(ii) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(iii) the holder promptly took reasonable steps to rectify the error
If the court, following such procedure, or pursuant to an order under Rule 26(f)(3), upholds the privilege or protection in a written order, the disclosure shall not be deemed a waiver in the matter before the court or in any other proceeding.
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or judicial district, as the case may be, where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time, place, or manner; or the sharing of costs; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.
Factors bearing on the decision whether discovery imposes an undue burden or expense may include the following:
(1) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;
(2) whether the discovery sought is unreasonably cumulative or duplicative; and
(3) whether the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’ relative access to the information, the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.
If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.
A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
"Inaccessible electronically stored information" means electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.
Upon the written request of any party made no later than 90 days after the service of the first responsive pleading by any defendant, the parties shall confer regarding electronically stored information. Such request shall be served on each party that has appeared, but it shall not be filed with the court. The conference shall be held as soon as practicable but no later than 30 days from the date of service of the request.
At any time more than 90 days after the service of the first responsive pleading, any party may serve on each party that has appeared a request that all parties confer regarding electronically stored information. Such request shall not be filed with the court. If within 30 days after the request all parties do not agree to confer, any party may move that the court conduct a conference pursuant to Rule 16 regarding electronically stored information.
The purpose of an electronically stored information conference is for the parties to develop a plan relating to the discovery of electronically stored information. Within 14 days after such conference the parties shall file with the court the plan and a statement concerning any issues upon which the parties cannot agree. At any electronically stored information conference the parties shall discuss:
(i) any issues relating to preservation of discoverable information;
(ii) the form in which each type of the information will be produced;
(iii) what metadata, if any, shall be produced;
(iv) the time within which the information will be produced;
(v) the method for asserting or preserving claims of privilege or of protection of trial preparation materials, including whether such claims may be asserted after production;
(vi) the method for asserting or preserving confidential and proprietary status of information either of a party or a person not a party to the proceeding;
(vii) whether allocation among the parties of the expense of production is appropriate, and,
(viii) any other issue related to the discovery of electronically stored information.
The court may enter an order governing the discovery of electronically stored information pursuant to any plan referred to in subparagraph (2)(C), or following a Rule 16 conference, or upon motion of a party or stipulation of the parties, or sua sponte, after notice to the parties. Any such order may address:
whether discovery of the information is reasonably likely to be sought in the proceeding;
preservation of the information;
the form in which each type of the information is to be produced;
what metadata, if any, shall be produced;
the time within which the information is to be produced;
the permissible scope of discovery of the information;
the method for asserting or preserving claims of privilege or of protection of the information as trial-preparation material after production;
the method for asserting or preserving confidentiality and the proprietary status of information relating to a party or a person not a party to the proceeding;
allocation of the expense of production; and
any other issue relating to the discovery of the information.
A party may object to the discovery of inaccessible electronically stored information, and any such objection shall specify the reason that such discovery is inaccessible.
On motion to compel or for a protective order relating to the discovery of electronically stored information, a party claiming inaccessibility bears the burden of showing inaccessibility.
The court may order discovery of inaccessible electronically stored information if the party requesting discovery shows that the likely benefit of its receipt outweighs the likely burden of its production, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.
The court may set conditions for the discovery of inaccessible electronically stored information, including allocation of the expense of discovery.
The court may limit the frequency or extent of electronically stored information discovery, even from an accessible source, in the interests of justice. Factors bearing on this decision include the following:
(i) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;
(ii) whether the discovery sought is unreasonably cumulative or duplicative;
(iii) whether the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or
(iv) whether the likely burden or expense of the proposed discovery outweighs the likely benefit.
(2017) The 2017 amendment to Rule 26(b)(5)(A) changed the procedure involving assertions of a claim of privilege or protection of trial preparation materials in connection with discovery requests. It deleted the language that a privilege log must contain specified information--author, recipient, date and type of document, etc.--where a party responding to discovery claimed privilege or protection from discovery.
In 2008, an amendment to Rule 26(b)(5) added the requirement of a privilege log to the Massachusetts discovery rules. The procedure adopted required a designation of each item withheld, document-by-document. Where information was withheld from discovery on the basis that it was privileged or otherwise subject to protection, the withholding party was required to produce a privilege log, unless the parties agreed otherwise in writing. The privilege log was required to list the author and sender (if different) of the document, the recipient, the date and type of document, and the subject matter of the withheld information. In many instances, the requirement of a privilege log listing each document with the required information has proven to be burdensome and in some instances, impractical, given the large number of matters that may exist in an electronic format. This may be especially true where discovery seeks production of electronic mail, text messages, or other forms of electronic communication. Hence, a decision was made to revisit the process.
The 2017 amendment to Rule 26(b)(5)(A) eliminated the requirement of producing a document-by-document log in the first instance containing the specified information. In its place, it adopted an approach used under the Federal Rules of Civil Procedure since 1993. It requires a party seeking to claim privilege or protection to “expressly make the claim” and to “describe the nature of the documents, communications, or tangible things not produced or disclosed…in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”
To comply with the revised rule, a party may respond with a privilege log or index in any appropriate way that allows other parties to evaluate the claim. The 1993 Notes of the Advisory Committee on the Federal Rules of Civil Procedure regarding Rule 26(b)(5)(A) of the Federal Rules state:
The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.
By virtue of the 2017 change in the Massachusetts rule, there is no longer a requirement that each item withheld be listed together with the name of the sender, etc. For example, a categorical privilege log may be appropriate where a request for documents encompasses a large number of communications between a lawyer and a client such that a document-by-document listing would be unduly burdensome. See Games2U, Inc. v. Game Trucking Licensing, LLC, 2013 WL 4046655 (U.S.D.C. D. Ariz. 2013); Companion Property and Casualty Ins. Co. v. U.S. Bank National Assoc., 2016 WL 6539344 (U.S.D.C. D. S.C. 2016). If the requesting party is of the view that such a categorical response is not adequate to allow it to make an intelligent decision as to whether all such documents are privileged, the party may seek appropriate relief in court. See Automobile Club of New York, Inc. v. Port Authority of New York and New Jersey, 297 F.R.D. 55 (U.S.D.C. S.D. N.Y. 2013) (motion for an order requiring defendant to amend the privilege log; court ordered categorical privilege log to be supplemented).
The rule as amended is not intended to prohibit a document-by-document privilege log containing detailed information if a party chooses to respond with one.
The final paragraph of Rule 26(b)(5)(A) provides that upon motion, a court may order the withholding party to provide additional information to enable the requesting party to assess a claim of privilege. This sentence is intended to address the point made in the 1993 notes of the Advisory Committee on the Federal Rules of Civil Procedure that when withholding information, a “party must also provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.”
(2016) At the request of the Rules Committee of the Supreme Judicial Court, the Standing Advisory Committee on the Massachusetts Rules of Civil and Appellate Procedure (“Standing Advisory Committee”) considered possible changes to the Massachusetts discovery rules that were based on amendments to the federal discovery rules. The proposed amendments to the Massachusetts discovery rules were intended to address the burdens of discovery that have been the subject of significant debate across the country over the past few years.
There were three proposed changes involving the Massachusetts discovery rules, all taken from amendments to the federal discovery rules.
The first proposed change to Rule 26(b) would have involved the scope of discovery by deleting the language that discovery must be “relevant to the subject matter involved” in the action. The proposal would have added in place of the deleted language that discovery must be relevant to a party’s claim or defense. This language was drawn from a 2000 amendment to Rule 26 of the Federal Rules of Civil Procedure refining the scope of discovery.
The second proposed change to Rule 26(b) would have adopted the principle of proportionality for discovery requests--i.e., discovery should be “proportional to the needs of the case.” This proposed amendment would have adopted the principle of proportionality as set forth in amendments to the Federal Rules of Civil Procedure that were effective in 2015. The proposed rule listed the factors that were to be taken into account in determining whether a discovery request was proportional to the needs of a case: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
The third proposed change would have deleted the language in Rule 26(b)(1) that “[i]t 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.” In its place, the proposal would have added language that information “need not be admissible in evidence to be discoverable.”
The Standing Advisory Committee reviewed the many comments submitted by both lawyers and judges after the proposal was published for public comment and voted not to recommend to the Supreme Judicial Court adoption of the three changes to the discovery rules. The comments reflected significant opposition to the proposed changes and described them as unnecessary and inadvisable at the present time. The principal objection to the amendments by the Standing Advisory Committee was based on the perception by many Committee members of drawbacks and unintended consequences of imposing the federal changes on the Massachusetts trial courts, as well as the newness of the federal changes. Most Committee members were in favor of a “wait and see” approach that would allow review of how the federal amendments affect litigants and civil litigation prior to considering whether similar amendments should be adopted in Massachusetts.
The Standing Advisory Committee also prepared draft language for consideration by the Supreme Judicial Court that alluded to proportionality in discovery, not in the context of the scope of discovery, but in the context of a court’s decision to grant a protective order involving discovery under Rule 26(c). The Standing Advisory Committee referred to this as “compromise” language in the event that the Supreme Judicial Court did not accept the Standing Advisory Committee’s recommendation not to change the Massachusetts discovery rules, at least until there is sufficient experience under the federal amendments. It is this compromise language that the Supreme Judicial Court adopted in 2016.
The amendment to the protective order language of Rule 26(c) lists factors similar to those that are relevant to a court’s decision to limit the discovery of electronically stored information under Rule 26(f)(4)(E). These factors are:
Under Rule 26(f)(4)(E)(iii), a relevant factor in limiting electronic discovery is “whether the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought.” This factor has been omitted from the listing of factors in the 2016 amendment to Rule 26(c).
The addition of these factors to Rule 26(c) should not result in any significant change to Massachusetts practice. The amendment confirms the existing authority of a trial judge in determining whether to grant a protective order.
(2014) Background to 2014 Amendments
The 2014 amendments to Rule 26 were part of a series of amendments concerning discovery of electronically stored information. Amendments have been made to Rules 16, 26, 34, 37, and 45.
For a number of years, the Standing Advisory Committee on the Rules of Civil Procedure of the Supreme Judicial Court (Standing Advisory Committee) had been considering the amendments to Federal Rules of Civil Procedure that dealt with discovery of electronically stored information in litigation.
The driving force behind the decision to consider rules for electronic discovery in Massachusetts is the staggering growth of information in electronic form today. In preparing draft electronic discovery rules, a subcommittee of the Standing Advisory Committee drew on two primary sources: the 2006 amendments to the Federal Rules of Civil Procedure that addressed electronically stored information and the 2007 Uniform Rules Relating to the Discovery of Electronically Stored Information (National Conference of Commissioners on Uniform State Laws). Helpful comments on the background that fueled the decision to amend the Federal Rules and to adopt Uniform Rules can be found in the Advisory Committee Notes to the 2006 Federal Rules amendments and the Comments to the Uniform Rules.
The following excerpts from the Prefatory Note that accompanied the Uniform Rules illustrate the scope of the problems created by electronically stored information and the litigation process. Footnotes from the following excerpts have been deleted.
"With very few exceptions, when the state rules and statutes concerning discovery in civil cases were promulgated and adopted, information was contained in documents in paper form. Those documents were kept in file folders, filing cabinets, and in boxes placed in warehouses. When a person, business or governmental entity decided that a document was no longer needed and could be destroyed, the document was burned or shredded and that was the end of the matter. There was rarely an argument about sifting through the ashes or shredded material to reconstruct a memo that had been sent.
"In today's business and governmental world, paper is a thing long past. By some estimates, 93 percent or more of corporate information is being stored in some sort of digital or electronic format. This difference in storage medium for information creates enormous problems for a discovery process created when there was only paper. Principal among these differences is the sheer volume of information in electronic form, the virtually unlimited places where the information may appear, and the dynamic nature of the information. These differences are well documented in the report of the Advisory Committee on the Federal Rules of Civil Procedure (Civil Rules Advisory Committee). The Civil Rules Advisory Committee recommended adoption of new Federal Rules to accommodate the differences:
The Manual for Complex Litigation (4th) illustrates the problems that can arise with electronically stored information.
The sheer volume of such data, when compared with conventional paper documentation, can be staggering. A floppy disk, with 1.44 megabytes is the equivalent of 720 typewritten pages of plain text. A CD-ROM with 650 megabytes, can hold up to 325,000 typewritten pages. One gigabyte is the equivalent of 500,000 typewritten pages. Large corporate computer networks create backup data measured in terabytes, or 1,000,000 megabytes; each terabyte represents the equivalent of 500 billion typewritten pages of plain text.
Electronically stored information may exist in dynamic databases that do not correspond to hard copy materials. Electronic information, unlike words on paper, is dynamic. The ordinary operation of computers - including the simple act of turning a computer on and off or accessing a particular file - can alter or destroy electronically stored information, and computer systems automatically discard or overwrite as part of their routine operation. Computers often automatically create information without the operator's direction or awareness, a feature with no direct counterpart in hard copy materials. Electronically stored information may be "deleted" yet continue to exist, but in forms difficult to locate, retrieve or search. Electronic data, unlike paper, may be incomprehensible when separated from the system that created it. The distinctive features of electronic discovery often increase the expense and burden of discovery."
After making a preliminary decision to move forward with a recommendation to adopt rules on electronic discovery, the Standing Advisory Committee also decided that it would be preferable to integrate any changes dealing with electronic discovery directly into the relevant existing rules of the Massachusetts Rules of Civil Procedure and rejected the alternative of promulgating a separate set of rules that would govern electronic discovery.
The Committee also discussed whether electronic discovery rules should be applicable to all Trial Court Departments or should be limited to those courts that regularly heard "larger" civil cases where the costs, time associated with, and burdens of, electronic discovery were perceived to be significant. The Committee ultimately decided that electronic discovery was a matter of concern in all courts of the Commonwealth, and concluded that the electronic discovery rules should be applicable to all trial courts in Massachusetts, and not be limited to courts such as the Superior Court.
The Standing Advisory Committee believes that the proposed amendments to the Massachusetts Rules of Civil Procedure reflect the goals that were identified in the Prefatory Note to the Uniform Rules describing the 2006 amendments to the Federal Rules of Civil Procedure: "to (1) provide early attention to electronic discovery issues, (2) provide better management of discovery into electronically stored information, (3) set out a procedure for assertions of privilege after production, (4) clarify the application of the rules relating to interrogatories and requests for production of documents to electronically stored information, and (5) clarify the application of the sanctions rules to electronically stored information."
There is a danger in attempting to describe "key" or "major" provisions of rules changes, since any significant change in a rule has the potential to change the dynamic of litigation. But it is fair to say that a major focus of the Committee charged with recommending the 2014 amendments was crafting a process: (1) by which the parties, and the court if necessary, deal with electronic discovery early in the litigation, including the format for production of electronically stored information; (2) that addresses how to handle electronically stored information that is "inaccessible;" (3) that recognizes that privileged information may be inadvertently disclosed in the context of electronic discovery and sets forth a remedy for such disclosure; and (4) that provides protection where electronically stored information is lost by virtue of the "good-faith operation of an electronic information system." These matters are all addressed in the Reporter's Notes that accompany the 2014 amendments.
The rules governing electronic discovery apply in all courts and in all proceedings governed by the Massachusetts Rules of Civil Procedure. However, a particular department of the Trial Court may consider whether supplemental rules or standing orders that address special needs of the department, including considerations common to self-represented litigants, would be appropriate. Of course, any departmental rule or standing order regarding electronic discovery may not be "inconsistent with" the provisions of the Massachusetts Rules of Civil Procedure. Mass. R. Civ. P. 83. See Sullivan v. Iantosca, 409 Mass. 796 (1991).
The 2014 Amendments
The 2014 amendments relating to electronically stored information have resulted in changes to Rule 26(b) and (f).
The existing paragraph that had constituted Rule 26(b)(5) ("Claims of Privilege or Protection of Trial Preparation Materials: Privilege Log") was designated as 26(b)(5)(A), with no changes made to the text. Simultaneously, new provisions were added that have been designated as 26(b)(5)(B) and (C) to deal with information that was mistakenly produced in discovery and subject to a claim of privilege or protection.
The provisions of the first paragraph of Rule 26(b)(5)(B) were adapted from Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure. The provisions of the second paragraph of Rule 26(b)(5)(B) and Rule 26(b)(5)(C) were adapted from Rule 502 of the Federal Rules of Evidence. The language addresses concerns that have been raised about inadvertent waiver of a privilege or claim of protection for trial-preparation material that may result from production of materials in connection with discovery. The problem has become particularly acute in light of the increased likelihood that privileged and protected material can easily be inadvertently produced in discovery where the materials are embedded in voluminous material in electronic format that has been turned over in discovery. But the language of the rule is not restricted to privilege or protection in connection with electronically stored information.
The Standing Advisory Committee decided that an appropriate place to add "clawback" provisions to the Massachusetts Rules was in Rule 26(b)(5), which prior to the 2014 amendment, dealt with privilege and privilege logs. A simultaneous amendment to Mass. R. Civ. P. 16 in 2014 also added this topic to the list of items to be discussed at a pretrial conference.
The Comment to Rule 9 of the Uniform Rules Relating to the Discovery of Electronically Stored Information aptly summarizes the scope of the problem as follows: "The risk of privilege waiver and the work necessary to avoid it add to the costs and delay of discovery. When the review is of electronically stored information, the risk of waiver and the time and effort to avoid it can increase substantially because of the volume of electronically stored information and the difficulty of ensuring that all information to be produced has in fact been reviewed. This rule provides a procedure for a party to assert a claim of privilege or trial-preparation material protection after information is produced in discovery and, if the claim is contested, permits any party that received the information to present the matter to the court for resolution ...."
The Massachusetts version of the "clawback" rule provides that a party may present the information to the court for resolution pursuant to the provisions of the Uniform Rules on Impoundment Procedure, Trial Court Rule VIII. The cognate language in the federal rules uses "under seal" terminology that the Standing Advisory Committee thought to be less appropriate under Massachusetts practice.
Although Rule 26(b)(5)(B) sets forth a "clawback" provision, there is nothing in the rule that precludes the parties from modifying the procedures set forth in the rule to deal with information within the scope of a privilege or protection.
The language of Rule 26(b)(5)(C) provides that if the procedure is used and a court enters a written order upholding the privilege or protection, "the disclosure shall not be deemed a waiver in the matter before the court or in any other proceeding." Such an order is necessary to avoid a waiver of privilege or protection as to non-parties.
Rule 26(c) includes a listing of types of protective orders that a court may enter. Item (2) in the list provides for an order that discovery "be had only on specified terms and conditions, including a designation of the time, place, or manner; or the sharing of costs." The reference to "manner" would, for example, permit an order that discovery be provided on a compact disc. The reference to "sharing of costs" makes clear that the court may order sharing of costs in light of the expenses associated with electronic discovery.
Rule 26(f) is new and deals with conferences regarding electronically stored information.
The definition set forth in Rule 26(f)(1) that the term "inaccessible electronically stored information" is "electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost" is taken from Federal Rule 26(b)(2)(B).
Unlike the Federal Rules of Civil Procedure and the Uniform Rules Relating to the Discovery of Electronically Stored Information, the Massachusetts version of Rule 26(f) does not require a conference between the parties as a matter of course (sometimes referred to as a "meet and confer" conference, although a telephonic conference may be permissible). The Massachusetts version, on the contrary, is a recognition that courts in Massachusetts may not necessarily be set up to provide in all instances a right to a conference with the judge as a matter of course in all litigation at the early stages of litigation.
The approach taken by Rule 26(f), however, recognizes that a conference between the parties at the early stages of litigation will often be helpful where there may be discovery of electronically stored information. Thus, the Massachusetts rule has been drafted to encourage a meaningful conference between the parties to deal with electronically stored information.
The Massachusetts version is an attempt to foster communication between counsel on issues of electronic discovery in a court environment that is not set up, as is the case in the federal courts, to provide individual conferences or individual court management of litigation in all instances. A similar approach that did not adopt the federal model in full can be seen in the "Guidelines For State Trial Courts Regarding Discovery of Electronically-Stored Information," approved by the Conference of Chief Justices, August 2006. See generally, Guideline 3 and the Comments that accompany Guideline 3.
Conference as of right. Under Rule 26(f)(2)(A), a party has a right to demand a conference with the other party by serving a written request for a conference "no later than 90 days after the service of the first responsive pleading" of a defendant. The term "pleading" as used in this rule is intended to reflect the definition of "pleading" as set forth in Rule 7(a). Thus, an answer of a defendant would be a pleading that would trigger the right to serve a request for a conference, whereas a motion to dismiss would not. The rule specifically provides that the request for a conference not be filed with the clerk's office, in an attempt not to overburden an already-beleaguered court system with additional filings. The conference must be held no later than thirty days from the date a party served the request.
Although the rule itself does not define the term "conference," the parties should not feel that they are required to meet in person. A conference by telephone or through electronic communication is satisfactory.
Conference by agreement. If there has been no request for a conference as of right within the 90-day period, Rule 26(f)(2)(B) allows a party to request a conference at a later point. Such a request should not be filed with the clerk's office. If the other parties to the case do not agree to such a conference, a party desiring a conference may move that the court conduct a conference under the provisions of Rule 16 to deal with matters relating to electronically stored information.
Purpose of conference; plan. Rule 26(f)(2)(C) sets forth the purpose of the conference, whether occurring as of right or by agreement of the parties - to develop a plan that relates to discovery of electronically stored information. The rule sets forth a variety of topics that must be discussed at the conference, adapted in part from Rule 3 of the Uniform Rules Relating to the Discovery of Electronically Stored Information.
The parties must discuss at the conference the preservation of electronically stored information (see item (i), "any issues relating to preservation of discoverable information"). Given the practice that exists in many organizations of deleting or disposing of electronic files after a set period of time, discussion of preservation may serve to avoid later disputes about the availability and expense of retrieving electronic information.
The language of the rule makes specific reference to the production of metadata as a subject to be discussed at the conference (see item (iii),"what metadata, if any, shall be produced"). Specific reference to metadata has also been added to the rule regarding a court order governing electronically stored information (Rule 26(f)(3)).
The parties may also want to address at the conference details regarding how the responding party accesses electronically stored information. This may aid the requesting party in formulating or refining discovery requests involving electronically stored information.
Within fourteen days after the conference, the parties must file with the court a plan that deals with electronically stored information. If the parties are not able to agree on certain issues, they shall file a statement so indicating. The parties must submit a plan to the court whether there was a conference as of right or by agreement, or by order of the court.
Electronically stored information orders. The language of Rule 26(f)(3) provides a court with discretion to enter an order relating to electronically stored information and sets forth the matters that may be addressed in such an order. These matters are drawn in part from Rule 4 of the Uniform Rules Relating to the Discovery of Electronically Stored Information.
A court may enter an order after the parties have filed a plan, or upon motion or stipulation of the parties, or sua sponte. A court order may be entered whether or not the parties have conferred. If the parties have agreed about the method to assert or preserve a claim of privilege or protection (Rule 26(f)(3)(F)), the court order may so state.
Limitations on electronically stored information discovery. Rule 26(f)(4) is drawn from Rule 8 of the Uniform Rules Relating to the Discovery of Electronically Stored Information. It provides considerations for a judge to limit discovery of electronically stored information and to allocate the costs involved. Rule 26(f)(4) applies regardless of whether the parties have had a conference or not.
The philosophy behind Rule 26(f)(4) is similar to that of Federal Rule 26(b)(2)(B), reflecting a two-tiered approach to electronic discovery. Upon request, electronic discovery shall be produced, unless limited under Rule 26(f)(4)(E). However, a party believing that electronically stored information is "inaccessible" (as defined in Rule 26(f)(1)) may object to the discovery. In the event that there is a motion to compel the discovery, or a motion for protective order, the court will then determine whether to order the discovery. See Rule 26(f)(4)(C).
(2008) The addition of subparagraph (5) to Rule 26(b) adds to the Massachusetts discovery rules the requirement of a "privilege log." The first sentence of subparagraph (5) is taken in part from the 1993 amendment to Rule 26(b) of the Federal Rules of Civil Procedure that sets out a procedure in connection with a claim of privilege or protection in response to a discovery request. This 1993 amendment has not been previously adopted in Massachusetts. Unlike the cognate Federal rule, the Massachusetts rule specifically uses the term "privilege log." Language has been added to the first sentence of the Massachusetts version in order to facilitate judicial review of the appropriateness of a claim that a matter is privileged or otherwise subject to protection. The second sentence of the rule allows the party seeking discovery and the party withholding the information, by written agreement, or the court to waive the requirement of a privilege log or to limit the log to "certain documents, written communications, or things." The rule also makes clear that a party need not include information in the privilege log that is itself privileged. As is the case with the federal rule, there is no specific requirement in the Massachusetts rule that the privilege log be produced simultaneously with the claim of privilege or protection. In an attempt to resolve discovery disputes without the need for court intervention, the parties are encouraged to confer and resolve areas of disagreement regarding privilege or protection, including agreeing on the timing of the production of the privilege log. See Superior Court Rule 9C ("Settlement of Discovery Disputes") and Boston Municipal Court and District Court Joint Standing Order 1-04 ("Civil Case Management"), III, D, 4 ("Contested Discovery"). The requirement of a privilege log applies to a claim of privilege or right to protection asserted by a party only. This rule imposes no obligation to provide a privilege log on the part of a non-party who withholds privileged information after service of a subpoena for the production of documentary evidence under Rule 45(b), although a court would appear to have authority to order preparation of a log.
(1996) Rule 26(c) has been amended to add a reference to "judicial district" to take into account the applicability of the Rules to the District Court and Boston Municipal Court.
(1973) As a result of S.J.C. Rule 3:15, Massachusetts practitioners are reasonably familiar with a broadened philosophy of discovery. The discovery rules (Rules 26-37) are in many respects similar to S.J.C. Rule 3:15. This is understandable, as Rule 3:15 and the new discovery rules were patterned in large measure upon Federal Rules of Civil Procedure, 26-37. On March 30, 1970, however, the Supreme Court promulgated an amended version of the federal discovery rules, containing several significant departures from existing patterns (and hence from Rule 3:15). Rules 26-37, although patterned closely upon the revised federal discovery rules, depart from them in several significant particulars. In each instance, the Advisory Committee felt the departure to be warranted either by Massachusetts needs or by ingrained Massachusetts practice.
Rule 26 expresses the overall philosophy of the discovery rules. It lists the types of available discovery; it emphasizes that, unless the Rules otherwise provide, the methods may be used as frequently as necessary; it specifies the scope of discovery in terms not of admissibility at the trial, but rather in terms of the possibility of discovering admissible evidence; and it spells out the procedure for relief from harassment-by-discovery.
Unlike S.J.C. Rule 3:15, Rule 26 explicitly permits the discovery of the existence and contents of an insurance agreement where such insurance may be the basis for satisfaction of the judgment, either directly or by way of indemnity. The insurance application, however, is not similarly discoverable. Of course, in an action in which the insurance policy or the application therefor is an essential element of the case, as, for example, in an action for the proceeds of a life insurance policy, the contents of both the policy and the application would be discoverable; Rule 26(b)(2) does not apply.
The first paragraph of Rule 26(b)(3) regulates the discovery of materials prepared in anticipation of litigation. First, such materials are not discoverable at all, unless they meet the requirements of Rule 26(b)(1); that is, they must be relevant to the subject matter of the pending action and/or reasonably calculated to lead to the discovery of admissible evidence. Second, the party seeking discovery must show (a) that he has substantial need of the materials to prepare his case; and (b) that he would sustain severe hardship were he to be forced to obtain the equivalent of such materials by means other than discovery. It will be noted that the "good cause" requirement of former Federal Rule 34 (and S.J.C. Rule 3:15) has been eliminated, to be replaced by a specified special showing. The language, which is taken verbatim from Federal Rule 26(b)(3), as amended, is designed to "conform to the holdings of the cases" construing the former Federal Rules, 48 FRD 497, 500 (1970).
Third, in keeping with the rule of Hickman v Taylor, 329 US 495 (1947), discovery, except in extremely unusual circumstances, may not be had of an attorney's mental impressions and similar intellectual work-product. This protection applies also to "other representative(s) of a party", provided their work relates to litigation. This pertains to "mental impressions and subjective evaluations of investigators and claim-agents," 48 FRD 500, 502 (1970).
The second paragraph of Rule 26(b)(3) is taken verbatim from its federal counterpart. "Many, but not all, of the considerations supporting a party's right to obtain a statement applies also to the non-party witness. Insurance companies are increasingly recognizing that a witness is entitled to a copy of a statement and are modifying their regular practice accordingly," 48 FRD 497, 503 (1970).
Rule 26(b)(4) contains the full text of the cognate federal rule. It permits the following means of discovering certain information pertaining to experts:
1. Through interrogatories:
a. The identity of each prospective expert witness;
b. The subject matter on which he is expected to testify; and.
c. The facts, opinions (and grounds therefor) as to which the expert is expected to testify.
2. Upon obtaining a court order, discovery may continue "by other means", which presumably includes discovery of documents, and depositions. (The question of fees and expenses will be considered hereafter.) An expert retained for litigation purposes need divulge his opinion only upon a showing of circumstances which preclude the discovering party's obtaining the information by other means.
The exceptional circumstances of this rule do not apply to the report of a non-witness examining physician, which is specially regulated by Rule 35(b).
In the usual situation, the party seeking discovery must pay the expert's fee for time spent in, for example, attending a discovery deposition and for time spent by a non-witness expert in responding to any kind of "exceptional circumstances" discovery. Moreover, in the former case, the court may require the discovering party to pay his opponent a portion of the expense incurred in initially obtaining the fact and opinion from the expert; in the case of "exceptional circumstances" discovery of expert opinion, the court must order payment.
Rule 26(c), which substantially copies Federal Rule 26(c), provides the mechanism by which a person (whether party or not) from whom discovery is sought may obtain court relief in the event he believes he is being unfairly oppressed. Generally, the order will be sought in the court in which the action is pending. However, in the case of a deposition being taken in another county, the order may be sought from the court in the county where the deposition is to be taken. It is assumed that the latter court will be co-equal to the former court. Thus, in an action pending in the Barnstable Superior Court, in which a deposition is being taken at Boston, the application for relief will be made to the Suffolk Superior Court.
Rule 26(d) copies Federal Rule 26(d) and makes clear that the so-called "rule of due diligence" no longer obtains. The parties, that is, may conduct discovery simultaneously; no longer will the party who first files notice of his opponent's deposition win, for that reason alone, priority in the conducting of depositions. The rule does contemplate that in certain situations, convenience and justice may require a court-imposed order of discovery. In the ordinary case, however, discovery will proceed in whatever order the parties select.
Rule 26(e) follows Federal Rule 26(e). Rule 26(e)(1) requires supplementation of previously complete responses to discovery (either in a deposition or by interrogatories, or otherwise) in only certain limited respects: (a) the identity and location of persons having any knowledge of discoverable matters, provided the identity and location of such persons was previously directly sought by discovery; and (b) the identity of each prospective expert witness and the subject on which he is expected to testify, again provided that such information was directly sought by previous discovery. Rule 26(e)(1)(B) also requires disclosure of the substance of the expert's testimony. Otherwise, a party who desires to force his opponent to supplement prior discovery may do so only (a) if he obtains an order of court; (b) if he obtains his opponent's agreement; or (c) if he strictly requests supplementation of prior answers to make this clear.