Massachusetts Takes a “Wait And See” Approach to Rule 26 Discovery Rule Changes

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Unlike Federal Rules, The Recent Amendment To Rule 26 Of The Massachusetts Rules Of Civil Procedure Addresses Protective Orders Only

by Nathalie K. Salomon

Heads Up

The Supreme Judicial Court (“SJC”) approved amendments to Mass. R. Civ. P. 26, effective July 1, 2016, but unlike the recent and substantial amendments to Fed. R. Civ. P. 26, the SJC’s amendments are confined to section 26(c), concerning protective orders.  Although the SJC’s Standing Advisory Committee on the Massachusetts Rules of Civil and Appellate Procedure (the “Committee”) considered proposals based on recent amendments to the Federal Rules, which focused on limiting the burdens of discovery (https://bostonbarjournal.com/2016/04/13/proportionality-emphasized-in-amendments-to-the-federal-rules-of-civil-procedure/). The Committee ultimately did not recommend them.  Instead, the Committee adopted a “wait and see” approach, and as a compromise, the Committee recommended, and the SJC adopted, the new language in Rule 26(c) which instructs a court to consider factors relating to the proportionality of discovery when determining whether to issue a protective order under Rule 26.

The New Massachusetts Rule 26(c)

Before the July 1, 2016 amendment, Rule 26(c) was largely a copy of its federal counterpart.  The SJC has now added a new paragraph, not present in the federal rule, at the end of the first paragraph of Rule 26(c), identifying three factors that may be considered in determining whether a protective order limiting discovery is warranted “due to undue burden or expenses.”  These factors are:

(1) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;

(2) whether discovery sought is unreasonable, 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.

Rule 26(c) still states that the court has power to issue a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” and the rule also still lists the kinds of orders that the court is authorized to issue (e.g., “that the discovery not be had,” or that it may occur “only on specified terms or conditions”) – but now the Rule sets forth substantive guidance to the courts and the parties concerning the appropriate circumstances for such orders.

The Reporter’s Note observed that the amendment “should not result in a significant change to Massachusetts practice because similar factors already exist to limit discovery of electronically stored information under Rule 26(f)(4)(E),” with the exception of one factor that is omitted from the amendment of 26(c), namely “whether the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought.”  The Reporter’s Notes conclude that the addition of these factors to Rule 26(c) merely “confirms the existing authority of a trial judge in determining whether to grant a protective order.”

The Committee Considered, but Did Not Recommend, Changes to Mass. R. Civ. P. 26 that Would More Closely Track Its Federal Equivalent.   

The limited scope of the Massachusetts 2016 amendment to Rule 26 is the result of a “compromise” between the Committee’s recommendation not to change the Massachusetts discovery rules at this juncture and commentators advocating for the adoption of the extensive changes recently made to Rule 26 of the Federal Rules of Civil Procedure.

The Committee considered, but ultimately rejected, three  proposed changes to discovery rules based on the 2000 and 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure.  Each of those revisions would have impacted Rule 26(b), which is titled “Scope of Discovery.”  As observed by the Reporter’s Note on the amendment, the intent of these proposed changes was “to address the burdens of discovery that have been the subject of significant debate across the country over the past few years.”

The first proposed change, drawn from the 2000 federal amendments, would have refined the scope of discovery under Rule 26(b) by removing language that discovery must be “relevant to the subject matter” and replacing it with language that discovery must be “relevant to the party’s claim or defense.”

The second proposed change to Rule 26(b), taken from the 2015 federal amendments, would have adopted the principle of proportionality by listing factors to consider in deciding whether a discovery request is “proportional to the needs of the case,” such as “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, drawn from the 2015 federal amendments, would have deleted language in Rule 26(b)(1) that information must be “reasonably calculated to lead to discovery of admissible evidence,” a confusing phrase which, as the Committee Note to the Federal Amendment explains, “has been used by some, incorrectly, to define the scope of discovery.”

Upon review of public comments, however, and to the dismay of some practitioners as shown in the Massachusetts Lawyers Weekly’s June 20, 2016 story titled “Unfortunate delay in amending state discovery rules,” the Standing Advisory Committee ultimately recommended not to adopt the three proposed changes to Rule 26(b).  Some comments took the position that the changes are not needed.  As suggested in the Reporter’s Note, the Committee was particularly receptive to the concern that the consequences of imposing the federal changes to Massachusetts courts are unknown (“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”). Consequently, the Committee favored a “wait and see” approach, advising the SJC not to revise the discovery rules at this time.  As a “compromise,” the Standing Advisory Committee prepared draft language for the SJC’s consideration alluding to the principle of proportionality but limited to the narrow issue of granting protective orders in discovery disputes under Rule 26(c).  The SJC approved the draft amending Rule 26(c) as described above and left untouched the remaining portions of the discovery rules.

For a further discussion of the amendment to Rule 26(c), readers are directed to the Reporter’s Note (http://www.mass.gov/courts/docs/sjc/rule-changes/rule-change-rule-26-mass-rules-civil-procedure-reporters-notes-may-2016.pdf).

Nathalie K. Salomon is a litigation associate at Fitch Law Partners LLP, where she focuses her practice on general commercial litigation, with particular emphasis on the defense of banks and other financial institutions in tort and contract matters, business litigation and real estate litigation.

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