The New Transgender Anti-Discrimination Law and Guidance Issued by the Attorney General’s Office and the MCADPosted: January 19, 2017
On July 8, 2016, Governor Baker signed into law An Act Relative to Transgender Anti-Discrimination, St. 2016, c. 134 (the “Act”), expanding Massachusetts’ protection against gender identity discrimination. Before the Act, the Transgender Equal Rights Act (“TERA”), St. 2011, c. 199, had prohibited gender identity discrimination in employment, housing, education, credit and lending. The Act now prohibits gender identity discrimination in places of public accommodation. G.L. c. 272, § 98, as amended by St. 2016, c. 134, § 3. It also requires places of public accommodation that lawfully segregate or separate access based on a person’s sex to “grant all persons admission to, and the full enjoyment of, such places of public accommodation, consistent with the person’s gender identity.” G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2 (emphasis added).
Guidance on the new law was issued on September 1, 2016, by the Attorney General’s Office (“AGO”) and the Massachusetts Commission Against Discrimination (“MCAD”). The MCAD issued clarified guidance on December 5, 2016, as discussed in more detail below. This article provides an overview of the AGO and MCAD guidance and recommended best practices.
Effective October 1, 2016, the Act amended G.L. c. 272, §§ 92A and 98 to include gender identity as an unlawful basis for discrimination in places of public accommodation. St. 2016, c. 134, § 5. A place of public accommodation is “any place whether licensed or unlicensed which is open to and accepts or solicits the patronage of the general public.” G.L. c. 272, § 92A. The definition is broad: a place of public accommodation can be either public or private, can provide products or services (regardless of whether it charges for products, services, or admission), and can include retail stores, restaurants, hotels, theaters, museums, libraries, public facilities, and sports and health clubs. AGO Guidance, p. 2. After a lawsuit filed by four religious organizations (which has been voluntarily dismissed), the AGO removed an unqualified reference to “houses of worship” from its list of examples of places of public accommodation. The MCAD similarly clarified that although the Act would not apply to religious organizations if such application “would violate the organization’s First Amendment rights,” places of public worship may be subject to the public accommodations law if they engage in, or their facilities are used for, a “public, secular function.” MCAD Guidance, p. 4.
Gender identity is defined as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” G.L. c. 4, § 7, Fifty-ninth. A person’s gender identity must be “sincerely held as part of the person’s core identity.” Id. It includes transgender, that is, “a person whose gender identity is different from that person’s assigned birth sex.” AGO Guidance, p. 1; MCAD Guidance, p. 6.
Examples of unlawful gender identity discrimination by places of public accommodation include: refusing or denying services; offering different or inferior services; advertising the refusal to accept business from or patronage of transgender or gender non-conforming individuals; providing false information about the availability of products, goods or services, facilities or admission; and harassment or intimidation. AGO Guidance, p. 2; MCAD Guidance, pp. 4-5. Moreover, it is now a crime, punishable by fine and/or imprisonment, and subject to a private right of action, for any individual to “aid or incite another in making a distinction, discriminating against or restricting an individual from a place of public accommodation” based on gender identity. MCAD Guidance, p. 4.
Use of Sex-Segregated Facilities
By far, the law’s most controversial provision concerns the use of sex-segregated facilities (e.g., bathrooms). Although places of public accommodation need not eliminate sex-segregated facilities, they must now allow patrons to use the facility most consistent with their gender identity. G.L. c. 272, § 92A, para. 2, as amended by St. 2016, c. 134, § 2. A person should be presumed to be using the facility most consistent with their gender identity if the person is not engaged in any improper or unlawful conduct. AGO Guidance, pp. 2-3. A person should not be presumed to be using the wrong facility based solely upon the person’s appearance. Id., p. 3.
If a place of public accommodation has a legitimate concern (i.e., about potentially improper or unlawful conduct) as to whether a person is using the appropriate facility, a limited inquiry of the person is recommended through a “private and discrete conversation.” Id., pp. 3-4. After confirming that the person is using the appropriate facility, the inquiry should end. Id., p. 4.
Improper or Unlawful Purpose
Gender identity cannot be asserted for an “improper or unlawful purpose.” G.L. c. 4, § 7, Fifty-ninth. Examples of such conduct include:
- loitering in a facility for the purpose of observing other patrons;
- harassment of employees or patrons;
- threats or violence;
- photographing or videotaping others without their permission; and
- violation of the law.
If a place of public accommodation has reasonable grounds to believe that a person is using the facility for an improper or unlawful purpose, it may take action consistent with its usual policies regarding removing persons who engage in improper conduct, including contacting law enforcement if warranted. Id.
Request for Proof of Gender Identity
Only in very limited circumstances is it permissible to request proof of gender identity. AGO Guidance, p. 4; MCAD Guidance, pp. 6-7. If a place of public accommodation, such as a health or sports club, regularly requires documentation of gender for all members, an individual’s gender identity may be documented by presenting “any one of the following:
- (1) a driver’s license or any other government-issued identification;
- (2) a letter from a doctor, therapist or other healthcare provider;
- (3) a letter from a friend, clergy or family member regarding the individual’s routine conduct such as dress, grooming and the use of corresponding pronouns; or;
- (4) any other evidence that the gender identity is sincerely held as a part of the person’s core identity.”
AGO Guidance, p. 4 (emphasis in original); MCAD Guidance, pp. 6-7 (providing additional examples). A place of public accommodation cannot use a request for documentation to harass, intimidate, embarrass or otherwise discriminate. AGO Guidance, p. 4; MCAD Guidance, p. 6.
The Act’s major change is to ensure that places of public accommodations are accessible to all persons, consistent with their gender identity, and that employees of public facilities are properly trained in the Act’s provisions. Most businesses updated their anti-discrimination policies following enactment of the TERA; similar updates are warranted in light of the Act. The following adapts the best practice recommendations in the updated MCAD guidance for places of public accommodation:
- Update employment policies and training materials to include a statement that discrimination and harassment based on gender identity is prohibited;
- Prohibit derogatory comments or jokes about transgender people and promptly investigate and discipline persons who engage in prohibited conduct;
- Update business and personnel records, payroll records, email systems and all other administrative records to reflect the stated name and gender identity of employees, clients and vendors;
- Use appropriate names and pronouns corresponding to each person’s stated gender identification in communications;
- Avoid gender-specific dress codes and permit attire that is consistent with each person’s stated gender identity;
- Develop a written policy concerning procedures for when a person undergoes gender transition and which promotes the confidentiality of the person’s transition; and
- Develop a policy that provides access to any sex-segregated facility consistent with a person’s gender identity and train all staff on the policy.
The Act is not expected to usher in a new round of litigation, in light of the TERA’s prior enactment and the public accommodation law’s liberal construction by courts and the MCAD. See e.g., Joyce v. Town of Dennis, 705 F. Supp. 2d 74, 83 (D. Mass. 2010). But, all places of public accommodation should review their policies and procedures to ensure that they are in compliance with the new law.
Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP. Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.
The Department of Labor is amending a longstanding Employee Retirement Income Security Act (ERISA) regulation that defines fiduciary “investment advice.” Barring postponement by the new administration, the new rule will generally become effective on April 10, 2017, and will dramatically affect financial advisors and other service providers who provide assistance to ERISA plan sponsors, plan participants, and IRA customers with their investment decisions.
Expanding the Definition of “Investment Advice”
The rule, 29 C.F.R. § 2510.3-21, greatly expands the range of activities that constitute fiduciary investment advice under ERISA. Today, fiduciary duties attach to investment advice if the advice provider and the advice recipient have a mutual understanding that the advice “will serve as a primary basis for investment decisions.” The new rule eliminates this concept of “reliance” and instead treats as fiduciary investment advice any “communication that, based on its content, context, and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action.” In addition, the new rule covers not only recommendations to buy and sell, but also recommendations about whether to hold a security or other property, take a distribution or rollover, manage assets or select an investment manager, and use a brokerage or fee-based advisory account.
These changes are important for two reasons. First, fiduciaries are subject to a “best interest of the investor” standard of care. A fiduciary must therefore make recommendations with the care, skill, diligence and prudence that a person experienced in such matters would use taking into account the investment objectives, risk tolerance, financial circumstances and needs of the investor. A fiduciary must also make recommendations without regard to the financial interests of the advice provider. Because the new rule’s broad definition of a “recommendation” potentially encompasses routine sales activity, it creates a major disruption for traditional commission-based advisors such as broker-dealers and insurance agents.
Second, fiduciaries are subject to ERISA’s prohibited-transaction rules, which apply to both employee benefit plans and IRAs. This means that a fiduciary may not provide investment advice if it would cause the fiduciary’s compensation to vary, unless a prohibited transaction exemption applies. In other words, an advisor who receives commissions—as well as any other provider compensated through a plan’s investments who might provide advice under the new definition, such as plan recordkeepers or third-party administrators—must either comply with an exemption or avoid providing fiduciary advice in the first place. Even an advisor who charges a flat fee must be careful when marketing its own advice services to a prospective customer, because its compensation will vary based on whether or not the customer hires it.
Dealing with the New Definition
The rule provides a few tools to navigate these new waters. The most prominent of these is a new, broad-based prohibited transaction exemption called the “Best Interest Contract,” or “BIC,” exemption. The BIC exemption is available for fiduciary advice to IRA customers, plan participants, and plan fiduciaries who hold, manage or control less than $50 million in plan and non-plan assets. The BIC exemption’s conditions are extensive, but it principally requires that the advice be provided pursuant to an enforceable obligation to act in the retirement investor’s best interest, either under ERISA or under a private contract with an IRA owner. Streamlined requirements apply where the advisor’s and its affiliates’ compensation is a fixed percentage of the advised assets or a set fee that does not vary with the investments recommended.
The rule also identifies a number of circumstances that, despite the rule’s otherwise broad scope, will not be considered fiduciary advice. For example, the rule outlines specific types of investment education that are not considered advice. Other carve-outs exist for marketing investment platforms, making general communications to the public, certain communications among employees of an employer sponsoring a plan, and recommendations to plan fiduciaries who hold, manage or control at least $50 million in plan and non-plan assets and who are capable of independently evaluating investment risks and recommendations. All of these carve-outs are subject to certain conditions and, in many cases, subject to certain disclosures to the recipient.
Consequences to Investors, Plan Sponsors and the Industry
Although the rule is intended to benefit retirement investors, it is likely to prove disruptive to the retirement industry. For example, the rule will now subject account rollover recommendations to a fiduciary standard, so many expect rollovers to IRAs to decline and the proportion of assets remaining in 401(k) and other employer plans to increase.
The rule will also likely increase the use of low-cost investments that have minimal or no 12b-1 fees or revenue-sharing associated with them. Thus, an increasing proportion of retirement assets will likely be invested in collective investment trusts, index funds, and low- or no-revenue-sharing share classes of mutual funds. By the same token, high-cost and high-revenue-sharing investments, as well as proprietary investments of an advice provider, will likely receive a smaller share of retirement assets. Other products such as variable annuities may also diminish in popularity as the rule subjects them to increased requirements under the BIC exemption.
Pricing for advice services to retirement customers will also likely shift from variable or commission-based arrangements to fixed-fee-based arrangements. This is because variable compensation would trigger the need to comply with the BIC or another prohibited-transaction exemption, or will limit the advice provider to communications that fit within a carve-out under the rule. Registered investment advisors, who generally employ fixed-fee arrangements today, will likely be less affected than broker-dealers and other commission-based service providers. Similarly, fee-based managed account products, including so-called “robo-advisors,” should see a boost in sales.
Plan sponsors will also need to consider how the new advice landscape may affect them. Many plan sponsors will need to determine whether and how to prudently select and monitor an advice provider both for recommendations on the plan lineup and for recommendations to plan participants. Sponsors may also need to evaluate the current plan lineups in light of the new rule and potentially change compensation arrangements with service providers. IRA owners may be faced with similar issues.
Ralph C. Derbyshire is Senior Vice President and Deputy General Counsel for FMR LLC, the parent company of Fidelity Investments. Fidelity Investments is a leading provider of investment management, retirement planning, portfolio guidance, brokerage, benefits outsourcing, and other financial products and services to more than 20 million individuals, institutions, and financial intermediaries. From 2012 – 2014, he served as the investment management industry representative to the Department of Labor’s ERISA Advisory Council.
James Barr Haines is a Vice President and Associate General Counsel at Fidelity Investments, supporting Fidelity’s workplace plan administration business. Jay is also co-chair of the Boston Bar Association’s ERISA Sub-Committee.
Unlike Federal Rules, The Recent Amendment To Rule 26 Of The Massachusetts Rules Of Civil Procedure Addresses Protective Orders Only
by Nathalie K. Salomon
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.
Siting Opioid Treatment Programs: Legal Tools for Addressing Zoning Restrictions and other Municipal ImpedimentsPosted: July 13, 2016
The opioid epidemic has reached historic proportions in the Commonwealth and beyond, as we are reminded by near daily news stories detailing its devastating consequences. Massachusetts leaders have taken strong steps to curb the epidemic, including legislation signed by Governor Charlie Baker in March. Similar legislative efforts, including additional funding for treatment, are advancing in Congress, and the Department of Health and Human Services (“HHS”) announced in March an initiative to increase access to medication-assisted treatment (“MAT”) which employs medication, counseling and education.
While the Commonwealth has prioritized the need for additional treatment, municipal restrictions often hamper efforts by nonprofit and other providers to site substance-abuse treatment programs. Although public opinion supports expanded treatment in the abstract, when a particular counseling or treatment program is proposed, opposition often arises from neighbors (whether commercial or residential). In response, municipal officials sometimes advance pretextual bases to deny a building permit or certificate of occupancy.
Attorneys can play an important role in advocating for these programs by marshaling protections offered by state and federal law to overcome unlawful zoning restrictions and discriminatory NIMBY (“not in my backyard”) opposition. This article outlines two statutory sources of protection for providers seeking to address the epidemic. In addition, it discusses case law supporting remedies for substance abuse and other social-service programs that have been impeded by neighborhood opposition grounded in stereotypes about, or hostility toward, those suffering from addiction or other disabilities.
- The Dover Amendment, M.G.L. c. 40A, §3, ¶ 2.
While a municipality may generally impose zoning restrictions to regulate where different types of uses – residential, commercial, medical, etc. – may be sited, when an educational nonprofit seeks to site a predominantly educational program, M.G.L. c. 40A, §3, ¶ 2, also known as the “Dover Amendment,” expressly prohibits a municipality’s zoning ordinances or bylaws from “regulat[ing] or restrict[ing] the use of land or structures” for that purpose. This means that a qualifying use must be permitted as of right in any zoning district. This law “represents a specific exception to the general power of municipalities to adopt and enforce zoning regulations and by-laws.” Regis College v. Town of Weston, 462 Mass. 280, 289 (2012).
The Massachusetts Zoning Act, which includes the Dover Amendment, authorizes courts to enjoin violations of the Dover Amendment. See M.G.L. c. 40A, §7. When representing a substance-abuse facility in response to a municipality’s invocation of inapplicable zoning restrictions, the Dover Amendment is an important legal tool. Sometimes town officials are not familiar with the provision and a demand letter can resolve the dispute. In other cases, it is necessary to obtain injunctive relief. Qualifying nonprofit organizations have successfully negotiated settlements which include both permission to site their program at the chosen location and substantial attorney-fee awards.
What uses qualify as predominantly educational?
If a program’s educational purpose is subordinate to other purposes, it does not qualify for Dover protection. “The Dover Amendment protects only those uses . . . that have as their bona fide goal something that can reasonably be described as educationally significant”; such an “educationally significant goal must be the ‘primary or dominant’ purpose for which the land or structures will be used.” Regis College, 462 Mass. at 285.
However, courts “have refused to limit Dover Amendment protection to traditional or conventional educational regimes.” Id. In fact, recognizing that the term “education” is a “broad and comprehensive term,” courts have determined that education is the primary or dominant purpose for which land or structures will be used in programs including substance-abuse treatment centers, group homes, programs serving formerly institutionalized adults with mental disabilities, facilities for the care and education of emotionally disturbed children, and organizations helping the homeless. Id.; Campbell v. City Council of Lynn, 32 Mass. App. Ct. 152, 154 (1992); Fitchburg Housing Auth. v. Zoning Board of Appeals of Fitchburg, 380 Mass. 869, 874 (1980). Courts have specifically held that “[r]ehabilitation surely falls within the meaning of education.” Gardner-Athol Area Mental Health Assoc., Inc. v. Zoning Board of Appeals of Gardner, 401 Mass. 12, 15 (1987). However, “purely residential and purely recreational projects” do not qualify as “educational.” Regis College, 462 Mass. at 287.
Courts have consistently found that the Dover Amendment protects substance-abuse treatment programs with a primarily educational purpose, including both non-medication and medication-based treatment programs. Congregation of the Sisters of St. Joseph of Boston v. Town of Framingham exemplifies a non-medication based Dover-qualifying program. Recognizing that Massachusetts courts have interpreted education broadly to include activities “outside the realm of a traditional curriculum,” the court held that a nonprofit educational program for families, including those recovering from addiction, was a protected educational use. 1994 WL 16193868, at *2 (Mass. Land Ct. 1994).
Recently, in Spectrum Health Sys., Inc. v. City of Lawrence, No. 2015-288-C (Essex Super. Ct.), the court granted injunctive relief to a substance-abuse counseling and education center. In a March 9, 2015 Order, the court held that the plaintiff was protected by the Dover Amendment, noting that “Lawrence is one of a handful of communities within the Commonwealth that is significantly adversely impacted by issues of the economy, crime and substance abuse (now, especially opiate distribution and use/overdosing),” and determined that “by statute, Spectrum has a right to now operate.” The court entered a further order on April 6, 2015, requiring the defendant to “now issue to the plaintiff . . . an occupancy permit/certificate for the use and occupancy of” the commercial property at issue.
Courts also have held that programs that include medication (the focus of the recent HHS initiative) qualify for Dover Amendment protection. See, e.g., Fitchburg Housing Auth., 380 Mass. 869, 873 (1980) (“[t]he fact that many of the residents of the facility . . . will be taking prescription drugs does not negate its educational purpose or make its dominant purpose medical.”). Likewise, the court in Spectrum Health Sys., Inc. v. Town of Weymouth, Civ. A. No. 06-12133-RWZ, 2006 WL 3487030 (D. Mass. Dec. 4, 2006) granted injunctive relief to a provider seeking to operate a MAT program. The court determined that the program was “likely to prevail on the merits” on its claim that the municipality acted in violation of the Dover Amendment by refusing to issue building permits. The court ordered the municipality “to immediately allow Plaintiff . . . to operate the subject program.” See Order of December 7, 2006.
A similar ruling was made where a nonprofit corporation sought to site a MAT program in a commercial (and not medical) district. In Spectrum Health Sys., Inc. v. City of Haverhill, Civ. A. No. 2014-130-B (Essex Super. Ct.), by order dated January 31, 2014, the court endorsed an agreement whereby the municipality would issue the certificate of occupancy and the provider agreed to certain terms and conditions regarding the operation of the program. The order stated that the agreement was reached “after a full hearing by the Court, in which the Court advised that there was a likelihood of success on the merits of Plaintiff’s case and that the City of Haverhill potentially could face a sizable judgment of damages should the Plaintiffs prevail.”
The issue of whether a purpose is predominantly educational is often contested and may implicate disputed issues of fact. For example, in Regis College, the plaintiff proposed to construct a development at the college for older adults, which would require an application and interview process for admission. Regis College, 462 Mass. at 282. Residents would have academic advisors and “be required to enroll in a minimum of two courses per semester,” and could potentially “pursue degrees and certificates awarded to the plaintiff’s current student body.” Id. at 282-83. While the Land Court entered summary judgment for the defendant determining that the use did not meet the educational requirement, the Supreme Judicial Court vacated the decision, holding that there existed a dispute of fact regarding whether the program “will primarily operate in furtherance of educational purposes.” Id. at 281. The SJC noted that the “primary and genuine purpose” requirement ensures that “a party invoking Dover Amendment protection does so without engrafting an educational component onto a project in order to obtain favorable treatment under the statute.” Id. at 290. In other words, it is not sufficient to rely upon a stray educational purpose which is a minor element of an otherwise non-exempt project.
Municipalities May Subject Dover-Protected Programs to Certain Restrictions
While municipalities cannot interfere with the siting of substance-abuse programs protected by the Dover Amendment, “such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” M.G.L. c. 40A, §3, ¶ 2. However, municipalities may not restrict qualifying Dover uses beyond these regulations. See e.g., Bible Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 33-34 (1979) (“provisions of the Lenox by-law go well beyond the scope of bulk, dimensional, and parking regulations permitted to be imposed on educational uses by G.L. c. 40A, s. 3, and place the board in a position to act, as it did in this case, impermissibly to impede the reasonable use of the (institution’s) land for its educational purposes”) (quotations omitted).
2. The Federal Fair Housing Act
In addition to the Dover Amendment, the federal Fair Housing Act (“FHA”) is often invoked in disputes regarding a municipality’s opposition to the siting of a substance-abuse treatment program. The FHA establishes that it is unlawful to discriminate “in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of . . . that buyer or renter.” 42 U.S.C. §3604(f)(1)(A). Further, the FHA provides that it is “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by” the Act. 42 U.S.C. §3617. This statute protects both for-profit and nonprofit providers of services to disabled individuals, and also provides for recovery of attorneys’ fees where a violation is established.
Under the FHA, a plaintiff can assert three distinct causes of action: “intentional discrimination (or disparate treatment), disparate impact, or failure to make a reasonable accommodation.” South Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 95 (D. Mass. 2010); Easter Seal Soc’y of New Jersey, Inc. v. Township of North Bergen, 798 F. Supp. 228, 234 (D.N.J. 1992) (township’s misclassification of the use, among other evidence, strongly suggested discrimination). Discriminatory intent “may be established against [a] public entity by demonstrating” discriminatory treatment, for example, by applying “different rules to the disabled than are applied to others.” Arc of New Jersey, Inc. v. New Jersey, 950 F. Supp. 637 (1996) (D.N.J. 1996).
Further, any interference or delay in responding to an application for a local permit may constitute a separate violation of the FHA. Specifically, Section 3604(f)(3)(A) states that “discrimination includes … a refusal to permit … reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises.” Case law highlights that municipalities may not impose artificial obstacles to the siting of a facility providing services to the disabled, including the imposition of delay. By way of example, in South Middlesex, 752 F. Supp. 2d at 89, nonprofit educational corporations operating residential substance abuse treatment programs sued when, in response to a proposed relocation within the Town, the plaintiffs “encountered resistance from some of the residents and local officials” over a period of years. The court determined that discrimination under the FHA “includes delays in issuing permits that are caused in part by discriminatory intent, even if the permits are ultimately granted,” and stated that “[t]his case involves not only evidence in the record indicating delays, but also communications by the Defendants linking such delays to the nature of the projects and their residents.” Id. at 97-98. Accordingly, the court denied the defendants’ motion for summary judgment, finding that “there is sufficient evidence in the record to raise a dispute as to whether discriminatory action was taken.” Id. at 98.
Most recently, the Second Circuit reached a similar result in Mhany Mgmt, Inc. v. County of Nassau, No. 14-1634, 14-1729, 2016 WL 1128424 (2d Cir. Mar. 23, 2016). A non-profit housing developer and several residents alleged that the governmental defendants had re-zoned parcels of county-owned land to prevent the construction of low- and middle-income housing as part of a long-standing discriminatory policy to exclude racial minorities. The court determined that the defendants’ decision to re-zone was made with discriminatory intent and “was a knowing response to the vocal and racially influenced opposition among [defendants’] citizenry.” Id. at *19. The court held that “the district court was entitled to conclude . . . that something was amiss here, and that [defendants’] abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race-based animus.” Id. at *24. Importantly, there was no requirement to establish that the governmental officials were themselves motivated by racial discrimination where they acted in “acquiescence” to the discriminatory objections from residents. The same principle applies in the context of Fair Housing Act liability for discrimination on the basis of disability or handicap.
Reasonable Accommodation Requirement
The FHA also establishes that it is a “discriminatory housing practice” to refuse to make
reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.
42 U.S.C. §3604(f)(3)(B). When a municipality refuses to make a reasonable accommodation in the implementation of its zoning “rules,” “policies,” or “practices,” the municipality violates the FHA. Oxford House v. Town of Babylon, 819 F. Supp. 1179, 1185 (E.D.N.Y. 1993).
It is settled law that a required reasonable accommodation may take the form of an exception to a zoning ordinance. As the First Circuit noted in Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 270 n. 22 (1st Cir. 1993), “compliance with the zoning ordinances should be ‘waived’” as a reasonable accommodation. Similarly, the court held in Oxford House, 819 F. Supp. at 1186, that the failure to provide a reasonable accommodation is per se “discriminatory conduct” under the FHA, and stated:
Because one of the purposes of the reasonable accommodations provision is to address individual needs and respond to individual circumstances, courts have held that municipalities must change, waive, or make exceptions in their zoning rules to afford people with disabilities the same access to housing as those who are without disabilities.
An accommodation is “reasonable,” and hence required under the FHA, if it
does not cause any undue hardship or fiscal or administrative burdens on the municipality, or does not undermine the basic purpose that the zoning ordinance seeks to achieve.
Id.; see also Oxford House v. Township of Cherry Hill, 799 F. Supp. 450, 462 n. 25 (D.N.J. 1992) (“‘Reasonable accommodation’ means changing some rule that is generally applicable to everyone so as to make its burden less onerous on the handicapped individual”).
By invoking the robust protections afforded by the Dover Amendment, Fair
Housing Act and other civil-rights statutes, attorneys can assist those on the front lines of substance-abuse treatment and prevention. While municipalities are empowered to impose reasonable regulations addressing the uses specified in the Dover Amendment, the proposed siting of a qualifying use cannot be derailed or delayed no matter how vociferous the opposition from neighboring residents or businesses. This set of legal protections constitutes a critical tool in promoting the availability of services for those suffering from the scourge of addiction.
 An Act relative to substance use, treatment, education and prevention, Chapter 52 of the Acts of 2016 (March 14, 2016).
 While the Dover Amendment does not include an attorneys’ fee provision, applicable civil rights statutes do. As a result, for example, the City of Pittsfield paid $100,000 in attorneys’ fees to a nonprofit corporation after initially refusing to permit a substance-abuse treatment program to operate. See “Taxpayers to pay for $100K clinic settlement,” Berkshire Eagle, August 14, 2012.
Paul Holtzman, a partner at Krokidas & Bluestein LLP, focuses on employment, civil rights and litigation matters, including discrimination, harassment, retaliation and whistleblower claims. He also serves as a mediator and arbitrator.
Jill Brenner Meixel, a partner in Krokidas & Bluestein LLP’s litigation group, represents for-profit and non-profit entities and individuals in commercial, employment, real estate and general litigation matters.
Attorneys Holtzman and Meixel have represented social service providers including substance abuse programs in challenging municipal obstacles to siting.
A Fairer Approach in Addressing the Opioid Epidemic: Recent Changes to the Law Regarding Involuntary Commitments for Alcohol and Substance Use Disorders under M.G.L. c. 123, § 35Posted: July 13, 2016
The opioid epidemic, in Massachusetts and nationwide, is a public health crisis demanding the attention and resources of all facets of government. One tool that has seen substantially increased usage is M.G.L. c. 123, § 35 (“Section 35”), which permits involuntary commitment of persons with alcohol or substance use disorder for treatment of up to 90 days if a court finds that they present a likelihood of doing serious harm to themselves or others. A petition under this section often accompanies an arraignment on criminal charges related to substance use, although not every individual subject to a Section 35 petition also faces criminal charges. The increase in usage has also spurred increased attention to the standards and processes that should apply to proceedings under Section 35. The involuntary commitment of women without any criminal charges to a correctional facility (MCI-Framingham) for treatment has been the focus of the most criticism and concern, including in articles in this Journal.
In response to the scrutiny, the Legislature and courts alike have recently updated and clarified the law. First, in July 2015, the Trial Court promulgated Uniform Trial Court Rules (“Uniform § 35 Rules”) to govern Section 35 commitment proceedings, which Rules went into effect February 1, 2016. Second, this past November, the Supreme Judicial Court issued its decision in In the Matter of G.P., “concerning the operation of § 35 as well as the … uniform § 35 rules.” 473 Mass. 112, 113 (2015). Third, in January 2016, the Legislature passed House Bill 3956, signed into law as Chapter 8 of the Acts of 2016 and effective April 24, 2016, which specifically amended Section 35 to bar sending women without criminal involvement to state prison for treatment. Finally, House Bill 4056 (“Opioid Bill”), passed and signed into law in March 2016, made one additional small change, extending the warrants for arrest under Section 35 for up to 5 business days. Once these changes are fully implemented, many of the previous concerns relating to Section 35—including the inherent limitations of the court system as a mechanism to access treatment services; the increasing number of individuals, in particular women, who are civilly committed to state prisons for treatment; and need for greater uniformity in commitment hearings—should be allayed. This article addresses the primary changes and clarifications made as a result of this recent court and legislative action.
First, as the title of this article suggests, the definitions in Section 35 were updated. In order to reflect the current, clinical understanding of the underlying disorder, the terms “alcoholic,” “substance abuser,” and “addict” were replaced with “a person with an alcohol disorder, substance use disorder, or both.”
Second, and most celebrated, under amended Section 35, women without criminal convictions may no longer be sent to MCI-Framingham for treatment when no beds at other facilities are available. To implement this reform, a total of forty-three new beds have been designated for women at Taunton State Hospital and Lemuel Shattuck Hospital to cover the estimated additional need. Under a new provision, however, a judge may evaluate the need to commit an individual to a secure facility “as the only appropriate setting for treatment” (often based on risk of violence)—men to MCI-Bridgewater and women to an as yet to be designated facility approved by the Department of Mental Health or the Department of Public Health.
Third, to standardize and expedite hearings, the new Uniform § 35 Rules clarify several procedural points. When a petition is first filed, the court must make an initial assessment to determine: 1) whether a proper party under the statute has made the filing and there exists a reasonable basis to believe the standard can be met; and 2) whether the respondent, i.e., the individual subject to the petition, is present and, if not, whether that particular court is the best venue to hear the petition.
Notwithstanding that individuals are increasingly looking to “section” themselves to access treatment when other treatment resources are unavailable or inadequate, under Section 35, an individual may not file a petition on his own behalf. Nevertheless, if the court determines that there is a strong basis for a petition, the court may ask a police officer or court official (often a probation officer) to step in as the statutorily qualified petitioner. Once the court finds both a reasonable basis for the petition and a proper petitioner, the petition may not be withdrawn or dismissed without leave of the court. This restriction against voluntary termination recognizes the public health and safety concerns underlying Section 35 proceedings and may help address the problem that occurs when family members or other petitioners develop cold feet as a result of pushback they may receive from a reticent respondent.
Under the second inquiry, if the respondent is present in court, the hearing must go forward without delay in that court (and bail should be set if the respondent is also arraigned on criminal charges). There are no venue restrictions for Section 35 petitions based on residency or otherwise, and adult hearings may proceed in juvenile court and vice versa. This frees petitioners to go to the court nearest to where they are able to locate the respondent, the court where criminal charges are pending, or the court nearest to where the petitioner may live or work (particularly where the petitioner is a treating physician or police officer).
When the respondent is not present at the time the petition is filed, the court may evaluate whether it is the most appropriate court to maintain the petition, and may issue a summons or, more frequently, a warrant for the respondent’s apprehension and return to that court during court hours only. The new Opioid Bill extended the time that the warrant may be returned from three to five business days. When a respondent is located far enough away from the originating court such that travel there during court hours is not practicable, officers may instead take the respondent to the nearest court, which can seek to have the petition transferred to that court. The Uniform § 35 Rules also clarify that the petitioner need not be present for the hearing to go forward (or she may appear remotely). This is helpful where a petition must be transferred to another court but the petitioner is unable to timely travel to the new court, as well as in those cases where the petitioner may be an on-duty treating physician who cannot leave the hospital.
Finally, in light of the respondent’s liberty interests at stake, in In the Matter of G.P., the Supreme Judicial Court clarified the standards for involuntary, civil commitment under the statute. The two primary rulings in the case establish that the appropriate standard of proof is clear and convincing evidence and that substantially reliable hearsay is admissible. This holding make Section 35 hearings analogous to probation violation hearings—a familiar standard for those in the criminal justice system.
The Court also addressed the type of evidence necessary to sustain a finding of clear and convincing evidence of likelihood of serious harm directly resulting from alcohol and/or substance use. Such risk can be established by demonstrating a substantial risk of physical self-harm, harm to others, or by showing that the respondent’s judgment is impaired to such a degree that there is a very substantial risk of physical impairment or injury. Each of the three methods also requires a showing of imminence of harm, which for purposes of Section 35 means not that the risk of harm must be immediate, but rather that it must materialize in the reasonably short term—meaning days or weeks rather than months. The Court elaborated on the types of evidence which would credibly support such an imminent risk: specific threats, proximate in time or numerous in nature, with the seriousness of the threats or past harm carefully weighed. Where a risk of harm to others is alleged, it must be of a substantial level of force and intensity to be categorized as “violent behavior” or “serious physical harm” under the statute. A simple pushing of another out of the way, for example, is not sufficient.
Under the third method (impaired judgment), the Court explained that the type of harm that may suffice was akin to an inability of the respondent to treat an injury or medical condition (e.g., failure to take prescribed medication or obtain regular dialysis) or a risk due to extreme weather conditions, and an inability of the respondent’s “community” to adequately address the risk. The ability of the respondent’s community to provide protection would likely be lower where an individual is homeless or living only with elderly parents or small children. A risk of overdosing may be sufficient under this prong, but only where “strong and specific evidence [is] presented that the risk of overdosing is indeed imminent and the degree of probability she will do so is high.” In the Matter of G.P., 473 Mass. at 129 n.23. A recent nonfatal overdose would likely satisfy this prong.
Both In the Matter of G.P. and the Uniform § 35 Rules address and protect a respondent’s right to present independent medical evidence and to appeal any commitment, allowing for both motions to reconsider and expedited review on appeal.
These recent changes bring consistency, transparency, and increased fairness to Section 35 proceedings. And with the additional dedicated Section 35 treatment beds allocated for women, increased fairness also means access to meaningful treatment and rehabilitation resources.
Crystal L. Lyons is an Assistant District Attorney in the Appeals & Training Bureau of the Middlesex District Attorney’s Office, and a member of the BBJ Board of Editors. She previously practiced business litigation, clerked for the Ninth Circuit Court of Appeals, and graduated Order of the Coif from UCLA School of Law. This article represents the opinions and legal conclusions of its author and not necessarily those of the Middlesex District Attorney’s Office.
In October 2015, the Justices of the Supreme Judicial Court (“SJC”) adopted a new Massachusetts Code of Judicial Conduct, effective January 1, 2016 (“new Code” or “2016 Code”). The new Code is the culmination of three years of study by a committee of judges, lawyers, and academics, who were appointed by the SJC to study the previous, 2003 Massachusetts Code of Judicial Conduct (“predecessor Code” or “2003 Code”) and to recommend changes in light of the American Bar Association’s 2007 Model Code (“2007 ABA Model Code”). The committee was fortunate to have among its members three prominent bar leaders: Attorney Lisa Goodheart and Professor Renee Landers, both past Presidents of the BBA, and Attorney Michael Greco, a past President of both the MBA and the ABA. Bar associations and individual members of the bar also provided invaluable feedback and suggestions during the public comment period.
The 2016 Code differs substantially from the predecessor Code in both form and substance. It closely resembles the 2007 ABA Model Code in structure and overall philosophy, but it also contains a significant number of nonconforming provisions, often because the departure is more suitable for a state that does not elect its judges. A summary of key new and revised provisions is available for review on the website of the Massachusetts Judicial Branch, as is the committee’s Report.
An important difference between the 2016 Code and the predecessor Code pertains to judicial participation in outside activities. To a large extent, the 2003 Code shielded judges from interactions with the public, in the belief that judicial isolation would best ensure the independence, integrity, and impartiality of the judiciary. In contrast, the 2016 Code recognizes the value and importance of judicial outreach and affirmatively encourages judges to participate in community activities, so long as they are consistent with a judge’s fundamental obligation to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and that avoids impropriety and the appearance of impropriety.
This new philosophy is particularly evident in rules bearing on judicial engagement with the organized bar. Early on, in Canon 1, the new Code makes clear that judges are affirmatively encouraged to “participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all.” Rule 1.2, Comment . Later, in Canon 3, Rules 3.1 and 3.7 offer specific guidance concerning a judge’s participation in extrajudicial activities, including those of bar associations. Rule 3.1 permits a judge to “engage in extrajudicial activities, except as prohibited by law or this Code,” albeit with some general cautions. For example, the activities must not interfere with the proper performance of the judge’s judicial duties or lead to recurrent disqualification. That said, as long as the concerns of Rule 3.1 are satisfied, Rule 3.7 encourages judges to participate in activities that “foster collegiality among the bar and communication and cooperation between the judiciary and the bar.”
This encouragement specifically extends to speaking about the administration of justice at bar association events. Rule 3.7, Comment 1[B]. In a departure from the predecessor Code, a judge ordinarily may do so even when the event is held in space provided by a law firm or is financially supported by one or more for-profit entities, such as law firms or legal vendors, that do substantial business in the court on which the judge sits. Ibid. The rationale for this liberalization is that some bar associations, particularly affinity bar associations with smaller memberships, may not be in a financial position to hold events without the support of private sponsors or the use of law-firm space. The Code cautions, however, that the judge must avoid giving the impression that the sponsors of an event are in a special position to influence the judge. Rule 3.7, Comment [1A].
The 2016 Code also relaxes what had been an outright prohibition on a judge serving as a featured speaker or receiving an award or other comparable recognition at a fundraising event of a law-related organization. A judge is now permitted to speak or be honored if the event is sponsored by a law-related organization that promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar. Rule 3.7(A)(6A). As explained in Comment , general interest organizations include, for example, state bar associations, city or county bar associations, affinity bar associations, and bar associations that specialize in particular practice areas but whose members take positions on both sides of disputed issues.
The 2016 Code continues to prohibit a judge from serving as a featured speaker or receiving an award at other fundraising events, but more narrowly defines that term. Under the new Code, a fundraising event is one where the organizers’ chief objectives include raising money to support the organization’s activities beyond the event itself; unless that definition is met, an event is not considered to be a fundraising event, even if the revenues from the event ultimately exceed the costs. Rule 3.7, Comment .
The 2016 Code also modifies the rules governing a judge’s acceptance of invitations to attend without charge a luncheon, dinner, reception, award ceremony, or similar event held by a law-related organization in Massachusetts. A judge may now accept such invitations without having to obtain a written determination from the Chief Justice of the court on which the judge sits that acceptance will serve a legitimate public purpose; instead, the Code presumes that a judge’s attendance at such events will serve a public purpose. The intent of this provision is to make it less burdensome for judges and their Chief Justices to facilitate judicial attendance at local bar events. In other instances, judges remain required to obtain determinations from their Chiefs before accepting complimentary invitations. See Rule 3.14.
At the same time that the SJC adopted the new Code, it also revised SJC Rule 3:11, which governs the Committee on Judicial Ethics. Among other things, the revised rule provides that the Justices may from time to time issue an Ethics Advisory to elucidate the meaning or application of a provision of the Code and to expound upon provisions that are of broad interest and application. SJC Rule 3:11(4). Groups of judges and lawyers, including bar associations, may request an Ethics Advisory, but the court may decline to render one for any reasons it deems sufficient. Ibid. Although the Committee on Judicial Ethics will continue to render Informal Opinions and Letter Opinions (formerly known as Advisory Opinions) only to judges, by offering bar associations the opportunity to seek clarification of Code provisions, the new rule recognizes that issues of judicial ethics are of great interest and importance to the bar as well as the judiciary.
Hon. Cynthia J. Cohen is an Associate Justice of the Appeals Court. She chaired the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and currently chairs the Committee on Judicial Ethics.
Barbara F. Berenson is a senior attorney at the Supreme Judicial Court. She staffed the committee that drafted and recommended the adoption of the 2016 Massachusetts Code of Judicial Conduct, and is currently staff counsel to the Committee on Judicial Ethics.
The amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, include significant changes to Rule 37(e) concerning spoliation of electronic evidence. See Fed. R. Civ. P. 37(e). With electronically stored information (“ESI”) becoming increasingly prevalent, the amendments are designed to clarify and streamline litigants’ preservation obligations, imposing a high bar on parties who seek to have sanctions imposed on their opponents. Litigants can now expect uniform standards for curative measures where the circuits had previously been split and sanctions inconsistently applied. For example, the amended Rule 37(e) represents a departure from the negligence standard which precipitated sanctions in a variety of circuits under the former Rule, and “forecloses reliance on inherent authority or state law to determine when” sanctions and remedial measures should be used. Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment, available at https://www.law.cornell.edu/rules/frcp/rule_37. (“Advisory Committee Notes”). Instead, under the current Rule 37(e), courts are instructed not to impose an adverse inference, or other harsh sanctions, absent a party’s intent to deprive the other party of the at-issue evidence, resulting in prejudice. Moreover, under the amended Rule, such corrective measures can only be imposed where electronic information that should have been preserved in anticipation of litigation is lost. The amended Rule offers some additional protection to litigants by permitting additional discovery to repair or replace such presumed “missing” evidence. And, even if the court eventually finds that sanctions are appropriate, they are limited to “measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). Thus, the result may be that, as litigants find additional protections under the amended Rule, and higher hurdles to imposing sanctions on their opponents, we may see a decrease in litigation concerning failure to preserve.
Fed. R. Civ. P. 37(e), as amended.
The text of the amended Rule, marked to show changes from the prior version, follows:
(e) Failure to Provide[Preserve] Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.[If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Evidentiary Sanctions Under the Amended Rule.
Failure to take reasonable measures to preserve. Rule 37(e) does not create a new duty to preserve, and as such, does not apply if the ESI is lost before the duty to preserve arises. See Advisory Committee Notes. Indeed, a party’s preservation obligations remain triggered when litigation is pending or reasonably foreseeable, or where the party has independent preservation obligations, e.g., under a specific statute or internal company policy.
In determining whether a party has taken reasonable steps to preserve, the Rule allows courts to consider “routine, good-faith operation of an electronic information system,” as well as the “proportionality” of the efforts to the case and to a party’s resources. Id. The Advisory Committee directs that courts be “sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts…” Id. And, a party’s efforts need not be perfect. Id.
No sanctions or other remedial measures unless information is lost. Critical to whether remedial measures are permitted under the amended Rule is that the information at issue be lost; if it can be “restored or replaced through additional discovery,” Rule 37(e) does not permit remedial action. Fed. R. Civ. P. 37(e). The Advisory Committee reasons that “[b]ecause electronically stored information often exists in multiple locations, loss from one source may often be harmless when substitute information can be found elsewhere.” Advisory Committee Notes. Moreover, “efforts to restore or replace lost information through discovery should be proportional to the apparent importance of the lost information…. [S]ubstantial measures should not be employed to restore or replace information that is marginally relevant or duplicative.” Id.
Measures “no greater than necessary” on finding of prejudice. Assuming the above prerequisites are met, a court may order certain proportional remedial measures under subsection (e)(1) of the amended Rule only “upon finding prejudice to another party from loss of information.” Fed. R. Civ. P. 37(e)(1). The measures must also be “no greater than necessary to cure the prejudice.” Id. How to assess prejudice is left to the discretion of the courts; the Rule does not address which party has the burden. Advisory Committee Notes.
Upon finding prejudice, courts may impose remedial measures that are proportional to the prejudice. Id. The Advisory Committee identifies these less severe, but serious measures, as “forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument, other than instructions to which subdivision (e)(2) applies.” Id.
Specified and severe measures only upon finding “intent to deprive.” Under the amended Rule, the most severe sanctions, such as adverse inference jury instructions, dismissal of claims, and entry of a default judgment, are now reserved for a “finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2). The Advisory Committee counsels the importance of a finding an “intent to deprive” in order to address and deter such failures. Advisory Committee Notes. Mere negligence — or even gross negligence — is no longer sufficient.
While the Rule sets forth four severe sanctions that may be imposed under the Rule upon a finding of intent, proportionality again directs the analysis. Likewise, the Advisory Committee cautions that “[t]he remedy should fit the wrong, and the severe measures authorized … should not be used when the information lost was relatively unimportant or lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.” Id.
Elizabeth Bresnahan is a litigation associate in the Boston office of Morgan, Lewis & Bockius LLP.