Proportionality Emphasized In Amendments To The Federal Rules Of Civil Procedure

foster_mannyby Immanuel R. Foster

Heads Up

Significant amendments to the Federal Rules of Civil Procedure became effective on December 1, 2015.  The amendments modify Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84.  The amendments seek to increase the efficiency and speediness of litigation while slowing the rising costs of discovery.  Toward the latter goal, certain of the revisions establish an express guiding principle to limit the scope of discovery:  proportionality.

The application of the proportionality requirement likely will have an immediate and lasting influence on how parties conduct discovery in federal courts and how the courts referee discovery disputes.  Specifically, amended Rule 26(b)(1), which governs the scope of discovery, permits discovery into relevant, non-privileged information “proportional to the needs of the case.”  (Emphasis added.)  Old Rule 26(b)(1) permitted discovery into relevant, non-privileged information “reasonably calculated to lead to the discovery of admissible evidence,” a phrase that was often misconstrued and which is now removed.  Old Rule 26(b)(1) also permitted such discovery into sources of additional discovery, “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.”  Thus, the new rule:  (i) establishes “proportionality” as a limiting principle (ii) potentially limits “discovery about discovery” and, consequently, (iii) will, it is hoped, add a needed control to the rising costs of discovery.

Proportionality Is The New Standard

The amended rule removes “reasonably calculated” – an ambiguous phrase that sometimes allowed for expansive discovery – and focuses on “proportional.”  And the amended rule specifies the considerations for determining whether discovery is proportional, including “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.”  Parties now must consider these factors when making or responding to discovery requests.

To be sure, proportionality is not a wholly new concept in federal practice.  For example, before the 2015 amendments, proportionality was implied by Rule 26(b)(2)(C)(iii), which required courts to limit discovery where “the burden or expense of the proposed discovery” would “outweigh[] its likely benefit,” and Rule 26(g) required a party seeking discovery to certify that the discovery was “not . . . unduly burdensome or expensive,” in light of the circumstances of the litigation.  But while parties seeking protective orders pursuant to Rule 26(c) would frequently call the court’s attention to these proportionality considerations, opposing parties would often invoke “reasonably calculated,” which the Advisory Committee Notes on the new rule state “were used by some, incorrectly, to define the scope of discovery.”  The amendments change that.  The Committee Notes also state that “[t]he present amendment restores the proportionality factors to their original place in defining the scope of discovery,” empowering courts to enforce tighter limits on disproportionate discovery.

Proportionality May Restrict Discovery About Discovery

The amendment to Rule 26 deletes language that permitted discovery into information about “the existence, description, nature, custody, condition, and location of any documents . . . and location of persons who know of any discoverable matter.”  However, the Committee Notes suggest that this change is more style than substance.  It states that the long list of examples is so “deeply entrenched” that to include it would only maintain unnecessary “clutter” in an already lengthy rule, and that “[t]he discovery identified in these examples should still be permitted under the revised rule when relevant and proportional to the needs of the case.”

Still, the revision suggests limitations to the scope of this discovery to the extent that it would be at cross purposes with proportionality.  For example, in a recent case, a magistrate judge ruling on a motion for a protective order applied Rule 26(b)(1) and limited a proposed Rule 30(b)(6) deposition topic, noting that “[w]hile Plaintiffs have articulated credible reasons for seeking this information nationwide, its production is not proportional to the needs of the case.”  Cooper v. Charter Commc’ns, Inc., No. 3:12-cv-10530-MGM, 2016 WL 128099, at *2 (D. Mass. Jan. 12, 2016).  One of the credible reasons that Plaintiffs had advanced was that they were entitled to test Defendant’s assertion that they lacked certain relevant records for Massachusetts by inquiring about “how [Defendant] is able to track service losses in other states.”  Pl.’s Opp’n To Charter’s Mot. at 7, Cooper, ECF No. 187.  Thus, although the discovery request might have been permitted under the old rule, it was deemed not proportional under the new rule, and therefore exceeded the scope of discovery now permitted.

Proportionality Considerations Will Likely Contain The Costs Of Discovery

Proportionality figures to slow the ballooning costs of litigation caused by technological advances.  Specifically, widespread use and adoption of electronically stored information (ESI), often over many platforms, has made once-mundane discovery requests exponentially more burdensome.  In the past, responding to a discovery request might have meant collecting the data from a few computers from a few custodians, and each of those computers might have stored only a few gigabytes of data.  Now, discovery sometimes requires searching and reviewing terabytes of data harvested from local computers, from networks, and from the cloud – all of which must be reviewed for relevance and privilege.  This discovery can be similarly onerous for discovery recipients who must review and analyze large productions to determine how the information fits into or modifies their theory of the case or how the information might necessitate additional discovery.

The Committee Notes express the hope that parties and the courts will continue to embrace sophisticated ways to reduce the costs of producing ESI.  For example, to the extent that a discovery request could call for a click-by-click review through thousands or millions of documents, courts should permit parties to use reasonably-tailored search terms to narrow the scope of review.  Proportionality may now require it.  Limiting the scope of e-discovery would certainly make discovery less expensive.  Moreover, as discussed above, if courts become more reluctant to permit discovery into potential sources of additional discovery, that would further contain costs.

Conclusion

At the very least, the amended Rule 26(b)(1) will require parties and federal courts to weigh the proportionality factors and determine, for example, whether the importance of certain discovery in resolving an issue is proportional to the burden or expense of providing that discovery.  The Committee Notes suggest that parties should use Rule 26(f) and other scheduling and pretrial conferences to gain a “full appreciation of the factors that bear on proportionality” to inform their discovery requests and responses.  In discovery motion practice, parties will no longer prevail by arguing that a discovery request is reasonably calculated to lead to admissible evidence; now they must demonstrate that the request is proportional.

Immanuel R. Foster is a litigation associate at Skadden, Arps, Slate, Meagher and Flom LLP, and a member of the Boston Bar Association.


Zoning for Medical Marijuana: Approaches & Considerations

mchugh_jamesstempeck_justinby Lisa L. Mead and Adam J. Costa

Heads Up 

On November 6, 2012, Massachusetts voters overwhelmingly approved a ballot initiative legalizing the use of marijuana by qualifying patients who have been diagnosed with a debilitating medical condition.  Effective January 1, 2013, the “Act for the Humanitarian Medical Use of Marijuana” presents a number of issues for cities and towns concerning the exercise of their zoning powers.  The Act established a process whereby medical marijuana treatment centers, defined as not-for-profit entities that acquire, cultivate, possess, process, transfer, transport, sell, distribute, dispense, or administer marijuana or products containing marijuana for medical use, may apply to the Department of Public Health (DPH) for registration.  The Act provides for the registration of up to 35 medical marijuana treatment centers initially, with at least one but not more than five centers per county.

Although no reference is made in the Act to municipal zoning control or its applicability to medical marijuana treatment facilities, the DPH regulations promulgated thereunder in mid-2013, see 105 CMR 725.000, address zoning for these facilities, referred to as registered marijuana dispensaries (RMDs):  “The Department does not mandate any involvement by municipalities or local boards of health in the regulation of RMDs, qualifying patients with hardship cultivation requirements or any other aspects of marijuana for medical use.  However, nothing in 105 CMR 725.000 shall be construed so as to prohibit lawful local oversight and regulation. . . that does not conflict or interfere with the operation of 105 CMR 725.000.”  105 CMR 725.600.  Accordingly, per the Home Rule Amendment, Mass. Const., amend. LXXXIX, Massachusetts cities and towns may in their discretion adopt zoning ordinances and bylaws relative to the siting, development, and operation of medical marijuana treatment centers, as long as their provisions are not at odds with the Act or the DPH regulations.

To Zone or Not to Zone

A municipality is under no obligation to zone for RMDs, and many cities and towns either have yet to adopt such zoning or have elected not to do so.  The DPH regulations mandate a buffer zone around certain facilities for children.  Absent a more stringent local requirement, “a RMD shall not be sited within a radius of five hundred feet of a school, daycare center, or any facility in which children commonly congregate.  The 500 foot distance. . . is measured in a straight line from the nearest point of the facility in question to the nearest point of the proposed RMD.”  Municipalities may establish their own buffer zones from these or other facilities, provided they are mindful that, collectively, these zones may not effectively prohibit RMDs city- or town-wide.

The Office of the Attorney General has opined that an outright ban on medical marijuana treatment centers in a municipality frustrates the purposes of the Act and, consequently, is invalid.  “The Act’s legislative purpose could not be served if a municipality could prohibit treatment centers within its borders, for if one municipality could do so, presumably all could do so.”  Letter from the Att’y Gen. to the Town of Wakefield, Mar. 13, 2013, available at http://www.mlu.ago.state.ma.us/.

The Attorney General’s Office has also rejected bylaws prohibiting home cultivation as an accessory use, restricting home cultivation to a particular area of the community, imposing buffer zones around home cultivation sites, and requiring a special permit for home cultivation.  Home cultivation of medical marijuana is authorized by the Act and the DPH regulations for qualifying patients whose access to a RMD is limited by verified financial hardship, a physical incapacity to access reasonable transportation, or the lack of a medical marijuana treatment center within a reasonable distance from the patient’s residence.

For municipalities that choose to zone for medical marijuana by adopting reasonable regulations, the choice is between incorporating RMDs into the zoning already in effect and establishing an overlay district within which RMDs may be sited.

Incorporation into Existing Zoning

Using a more traditional approach to zoning, a municipality may amend its existing zoning ordinance or bylaw to identify and define RMDs and to specify the zoning district or districts where they are permitted.  In doing so, it subjects a RMD to the same dimensional and density requirements and performance standards applicable to other uses in the same district.  Dimensional and density requirements might include area, frontage, and setback constraints, among others. Performance standards might regulate noise, traffic, or other aspects of a use for compatibility with its surroundings.  If a city or town so chooses, it may zone cultivation and processing operations separately from retail facilities.  Although both qualify as RMDs per the DPH regulations, these uses need not be co-located.

A city or town may elect to allow RMDs only by special permit, in some or all of the zoning districts in which they are an available use.  The Attorney General has cautioned municipalities, however, that an ordinance or bylaw must provide adequate standards to guide a board in deciding whether to grant or deny the special permit.  It may not be enough for a municipality to rely on the general requirement of the Zoning Act, at G.L. c. 40A, § 9, that the use be “in harmony with the general purpose and intent of the ordinance or by-law,” nor are a municipality’s special permit criteria for other uses always appropriate for application to RMDs.  Municipalities have been advised “to list specific criteria for. . . consider[ation] when reviewing [an] application.”  Letter from the Att’y Gen. to the Town of Westborough, July 11, 2013, available at http://www.mlu.ago.state.ma.us/.

In its regulation of medical marijuana treatment centers, a municipality must also be cautious not to run afoul of the zoning exemption available to agricultural uses, under G.L. c. 40A, § 3.  To the extent that an RMD’s operations qualify as commercial agriculture thereunder, a municipality cannot require a special permit for, or unreasonably regulate or prohibit, the use.

Creation of an Overlay District

An alternative to incorporating RMDs into an existing zoning ordinance or bylaw is to create an overlay district for medical marijuana treatment centers.  An overlay zone is a district superimposed on one or more established zoning districts which may apply supplemental restrictions on uses in these districts or permit uses otherwise disallowed.  By adopting an overlay district, a municipality gains greater control over where RMDs may be sited.  The limits of acceptable locations need not coincide with the boundaries of the municipality’s existing zoning districts, but may be determined by the city or town in its discretion upon consideration of existing and anticipated land uses and the compatibility of RMDs with these uses.  A municipality may incorporate dimensional requirements and performance standards specific to the overlay district, and may even pair these regulations with buffer zones surrounding schools, daycare centers, or other uses potentially impacted by a RMD.  A special permit may be required for the development and operation of a RMD within the overlay district; or the municipality may choose to permit these facilities as-of-right or subject only to site plan review.

Host Community Agreements

Several Massachusetts municipalities have opted to negotiate host community agreements with potential RMDs to eliminate or mitigate any possible adverse effects of RMDs.  Neither the Act nor the DPH regulations prohibit these agreements.  And while a municipality may not require a RMD to enter into a host community agreement, such an agreement may expedite a RMD’s receipt of a letter of support or non-opposition from the municipality, now a requirement of the DPH licensing process as updated in mid-2015.  A municipality might otherwise choose to issue its letter of support or non-opposition only upon a RMD’s completion of the permitting process, once the city or town is satisfied that the project has been adequately vetted.

Among the most common subjects of host community agreements are financial compensation due the municipality, taxes, and charitable contributions.  Financial assistance to a city or town may help offset community impacts, fund public health and safety initiatives, or otherwise aid the municipality.  The payment of real estate taxes or the making of payments in-lieu-of taxes is also worthy of negotiation; otherwise, because RMDs are required by the Act to be not-for-profit entities, they may qualify as tax-exempt.  Entering into a tax agreement helps to alleviate any questions about the payment of taxes to the municipality.  Finally, a number of Massachusetts municipalities have negotiated charitable contributions by RMDs in exchange for the community’s support of, or non-opposition to, the development of a medical marijuana treatment center.

In summary, Massachusetts cities and towns have a choice about whether to zone for medical marijuana treatment centers and, if they do, of how to approach the rezoning process.  Some municipalities have utilized traditional zoning practices, allowing RMDs in one or more existing zoning districts and often requiring a special permit.  Other municipalities have developed overlay districts, within which RMDs may be sited subject to dimensional requirements, performance standards, and other regulations specific to the use.  Regardless of which approach is chosen, a municipality would be wise to explore negotiation of a host community agreement with a potential RMD and avail itself of the financial incentives that may be offered in exchange for the municipality’s cooperation with the application process.

Lisa L. Mead and Adam J. Costa are partners at Blatman, Bobrowski, Mead & Talerman, LLC. They concentrate their practice in the areas of general municipal, land use and environmental law, representing both municipal and private clients throughout Massachusetts.


The Impact of Recent Revisions of the Massachusetts Rules of Professional Conduct on Confidentiality

Newhouse_MartinWoolf_Jeffreyby Martin J. Newhouse and Jeffrey D. Woolf

Heads Up 

The recent revisions by the Massachusetts Supreme Judicial Court (SJC) to the Massachusetts Rules of Professional Conduct effective July 1, 2015 included numerous changes to the rules governing confidentiality of client information, including substantial revisions of rule 1.6 (“Confidentiality of Information”).  The changes, as addressed herein, generally clarify a lawyer’s obligations under the Rules and also offer more helpful guidance on several points than was previously provided.

Rule 1.6:

  • The scope of information covered remains unchanged.  The SJC maintained a major difference between the Massachusetts and the ABA Model Rules, namely by continuing to limit the information covered by rule 1.6 only to “confidential information relating to the representation.”  (The ABA Model Rule covers all “information relating to the representation.”)
  • A clearer definition provided for “confidential information.”  In a very helpful step, the SJC also provided new comments, [3A] and [3B], clarifying what constitutes “confidential information.”  Comment [3A] defines confidential information as information relating to the representation of a client, whatever its source, that is (a) privileged; (b) likely to be embarrassing or detrimental to the client if disclosed; or (c) is information the lawyer has agreed to keep confidential.  Comment [3A] also provides a road map of what types of information would not be “confidential” under the rule.  Comment [3B] further explains the limitation of the rule to “confidential information” and explains how this change has been carried out throughout the Massachusetts Rules of Professional Conduct.
  • Expanding protection of non-confidential information.  In an interesting addition, the SJC warns in comment [4] that the prohibition against disclosing confidential information also prohibits any disclosure of information, while not itself protected under rule 1.6, that “could reasonably lead to the discovery of [protected] information by a third person.”  Included in this are hypotheticals that may lead others to “ascertain the identity of the client or the situation involved.”
  • Enlarging the scope of permissible disclosures. Most notably, the SJC has added two new exceptions to rule 1.6(b).  Rule 1.6(b)(4) expressly permits disclosure “to secure legal advice about the lawyer’s compliance with these Rules.”  Rule 1.8(b)(7) permits limited disclosure “to detect and resolve conflicts” when lawyers change employment or firm ownership changes.  In addition, the new rule 1.6(b)(3), along with revisions to rule 1.6(b)(1) and (2), clarify prior existing exceptions.  Significantly, rule 1.6(b)(1) continues to contain a provision, absent from the Model Rules, which authorizes the disclosure of confidential information “to prevent the wrongful execution or incarceration of another.”  Rule 1.6(b)(2) also continues the prior Massachusetts provision that permits disclosure to “prevent the commission of a criminal or fraudulent act,” without limiting this exception to conduct committed by “the client,” as exists under Model Rule 1.6(b)(2).  Thus the Massachusetts rule permits disclosure to prevent the commission of a crime or fraudulent conduct by a third person.  Also unlike Model Rule 1.6(b)(2), the Massachusetts rule does not require that the lawyer’s services must have been used in furtherance of the crime or fraud in order for disclosure to be permitted.  Permissive disclosure under rule 1.6(b)(2) is also not limited, as previously and under the Model Rules, to preventing conduct likely to cause substantial damage to property and financial interests of another; new rule 1.6(b)(2) additionally permits disclosure where substantial damage is likely to “other significant interests” of another.
  • Enhanced guidance with regard to disclosure exceptions. Comments [5] et seq. have been revised or wholly rewritten to provide more detailed and much needed guidance for lawyers seeking to understand whether disclosure is permitted or required.  For example, comment [12] discusses disclosure that may be required by other law; comment [15] provides guidance on dealing with a court order requiring disclosure; comments [13] and [14] deal in detail with the disclosures when lawyers change employment or firms change ownership.  Finally, comment [17] provides important guidance on how lawyers should exercise their discretion when an exception under rule 1.6(b) authorizes discretionary disclosure.
  • Addition of Rule 1.6(c). This new subsection requires lawyers to make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or access to, confidential information protected under the rule.  New comments [18] and [19] provide, inter alia, that unauthorized access to or disclosure of confidential information “does not constitute a violation of paragraph [1.6](c) if the lawyer has made reasonable efforts to prevent the access or disclosure.” The comments discuss the factors to be considered as to whether reasonable efforts have been made.  Comment [18] cross-references comments [3] and [4] to rule 5.3 with regard to the sharing of information with non-lawyers outside the lawyer’s firm (e.g., an outside document management company).  Comments [18] and [19] confirm an attorney’s obligation to comply with all applicable state and federal privacy laws.  (Practice tip: be aware of your obligations under Mass. G.L. c. 93H (the Massachusetts security breach notification law) and the corresponding regulations, 201 CMR § 17.00 et seq.).

Rule 1.8(b) and 1.9(c)(1):

Although in a number of respects, the SJC’s revisions to the Massachusetts Rules of Professional Conduct have brought our rules into closer conformity with the ABA Model Rules, they have also preserved important distinctions.  As discussed above, the SJC retained our narrower definition of the scope of information covered by rule 1.6.

Similarly, while both rules 1.8(b) and 1.9(c)(1) parallel the ABA Model Rules in prohibiting the use of confidential information relating to the representation to the disadvantage of the client or, in the case of rule 1.9(c)(1), the former client, the SJC has retained in each rule the prohibition against using such information for the benefit of a third party or for the lawyer’s own benefit.  Under rule 1.8(b) such information may be so used if the client gives informed consent or such use is permitted or required by the rules.  Under rule 1.9(c)(1), such use is only allowed if permitted or required under rules 1.6, 3.3, or 4.1 with respect to the former client.  Rule 1.9(c) applies not only to a lawyer who has formerly represented a client in a matter but also if the lawyer’s present or former firm has formerly represented the client in a matter.

New Rule 1.18:

On the other hand, the SJC has not hesitated to adopt aspects of the ABA Model Rules that fill gaps in or represent improvements to the Massachusetts ethics rules.  One such example is the SJC’s adoption of Model Rule 1.18, which defines the duties owed to prospective clients.  The new rule makes it an ethical violation for a lawyer to engage in conduct for which the lawyer  would previously have been liable in tort for violating confidentiality obligations to a prospective client:

  • Under rule 1.18(b), even when no client-lawyer relationship is formed with the prospective client, a lawyer may not use or disclose confidential information learned from the prospective client, except as rule 1.9 would permit in the case of a former client.
  • Under rule 1.18(c), a lawyer who has received confidential information from a prospective client may not take on a representation materially adverse to the prospective client in the same or substantially related matter if the confidential information received could be significantly harmful to the prospective client.  If a lawyer is disqualified under this sub-section, no lawyer in the lawyer’s firm may knowingly undertake or continue the representation adverse to the prospective client.
  • However, rule 1.18(d) provides that, even when the lawyer has received disqualifying information from the prospective client, representation in the adverse matter is permitted if (1) both the affected and the prospective client give written informed consent or the lawyer who received the information took reasonable precautions to limit the information from the prospective client and is timely screened, as defined in rule 1.10(e), and the prospective client is promptly given written notice.

 Rule 1.0 (former Rule 9.1):

“Definitions” in the Massachusetts Rules of Professional Conduct used to be found in rule 9.1.  Consistent with the ABA Model Rules, this has been renamed as “Terminology” and renumbered as rule 1.0.  Three new definitions (and corresponding commentary) have been added:  “informed consent”; “confirmed in writing”; and “writing” (or “written”).  The new Massachusetts definitions are largely consistent with the ABA Model Rules.

New Rule 4.4(b):

The SJC also has added rule 4.4(b), which is identical to the corresponding ABA Model Rule, and for the first time addresses a lawyer’s obligation upon receipt of documents or electronic information that was inadvertently sent by opposing lawyers or parties.  Rule 4.4(b) requires a lawyer receiving such documents or information to notify the sender promptly, in order that (as stated in comment [2]) the sender may take protective measures.  Comments [2] and [3] provide a good discussion of the problem the rule addresses.  Importantly, comment [2] brings metadata in electronic documents within the purview of rule 4.4(b) “only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”   Comment [3] recognizes a lawyer’s professional discretion to return or delete such documents unread where the law does not require other action.

In conclusion, the reader is directed to the “Report of the Standing Advisory Committee on the Adoption of Revised Rules of Professional Conduct Effective July 1, 2015,” for a further discussion of these and other changes.

Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.

Jeffrey D. Woolf is an Assistant General Counsel to the Board of Bar Overseers and is a member of the BBA Ethics Committee.


The Rise of the On Demand Economy: The Tension between Current Employment Laws and Modern Workforce Realities

cremins_nancy by Nancy Cremins

Heads Up

Over the last several years, startups brought convenience to the masses by providing virtually anything on demand.  Rides, groceries, takeout service, house cleaning, and more are all accessible with a few taps on your smartphone.  The sheer volume of human capital needed to make these on demand businesses function, along with the unpredictable demands of consumers, caused companies such as Uber, Lyft, Postmates, and Instacart (to name a few) to make the business decision to classify these service workers as independent contractors.

Building the infrastructure for an on demand business that serves many customers in multiple cities, or even multiple countries, is an incredibly expensive endeavor.  For example, Uber has gone through 13 rounds of funding and raised over $6.6 billion to support its large-scale operation.  By necessity, these startups must be cost conscious with their capital or risk failure.  Classifying their workers as independent contractors saves them substantial sums of money on employment taxes and benefits.  These businesses claim that independent contractor status is also beneficial for the workers who are permitted to retain flexibility to work on their own terms as often as they want.  For valid reasons, some (though not all) on demand workers do not agree.

Workers classified as independent contractors do not have access to company-provided benefits and protections such as paid time off.  They are not given the payment protections of minimum wage, and overtime pay.  Nor do they have the safeguards of worker’s compensation and unemployment insurance.  These workers also shoulder the cost of the business expenses incurred in performing their jobs, such as their tools, supplies, or the cost of vehicle operation (though those are deductible business expenses).  In addition, workers are responsible for paying all taxes on pay, which means the company is not contributing to employment taxes, Social Security, or Medicare.  Opponents to the present on demand economy practice of classifying workers as independent contractors argue that tight standards on employee classification provide better protections and more financial security for workers.

Around the country, workers, businesses, and localities are approaching the shift to the independent contractor model in a variety of ways.  A host of lawsuits were filed by workers against a number of on demand businesses asserting claims for worker misclassification. These lawsuits are costly and place tremendous pressure on the companies, often resulting in stagnating growth or even closure of the business.  For example, in July 2015, on demand home services business, Homejoy, shut down because it ran out of money defending worker lawsuits and could not raise an additional round of investment due to pending litigation.

Some on demand businesses are attempting to avoid or prevent additional misclassification lawsuits by preemptively classifying their workers as employees.  Instacart (which is defending its own misclassification lawsuit) announced, in June 2015, that it would be commence classifying its workers as employees.  Other companies are maintaining their practice of classifying workers as independent contractors while they wait for the outcome in the bellwether case on the issue, O’Connor v. Uber Technologies et al, C13-3826 EMC, pending in the Northern District of California.

In general, things have not gone Uber’s way in the litigation.  On March 11, 2015, the Court denied Uber’s motion for summary judgment.  On September 2, 2015, the Court certified the case as a class action.  What’s more, during the pendency of the lawsuit, the California Labor Commission ruled that a specific Uber driver was an employee, and not an independent contractor.  While the ruling was non-binding and impacted only one driver, it received  considerable attention.  The trial is set to commence on June 20, 2016 and the outcome will have a substantial impact on the freelance economy.

In another approach, the Seattle City Council voted in December 2015 to approve a bill that would permit drivers for Uber, Lyft, and other ride-hailing apps to form unions and negotiate wages.  Such a city ordinance is unprecedented as it would be the first to allow independent contractors to engage in collective bargaining.  Still, the ordinance may face legal challenges based on the contention that it is preempted by federal law and, if not preempted, that collective bargaining by independent contractors could constitute illegal price-fixing under antitrust law.

Here in Massachusetts, there is a presumption that a worker who provides services to a business is an employee unless all of the following are met:

  • The worker is free from the company’s control and direction;
  • The services provided are outside the company’s usual course of business; and
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature that is involved in the services performed for the company. M.G.L. c. 149, § 148B.

Given such stringent guidelines, the safe default position is that a company should classify its workers as employees, not independent contractors.  However, in April 2015 the Supreme Judicial Court took a narrower approach than some anticipated in Sebago v. Boston Cab Dispatch, Inc., 471 Mass. 321 (2015).

In Boston Cab, the Court found: (i) taxi drivers did not provide services to the cab companies or garages; (ii) drivers were free from the direction and control of the cab companies; (iii) services provided by drivers were not in the ordinary course of business of cab companies; and (iv) drivers were engaged in an independently established trade, occupation or business.  As a result, the Court found that the drivers were properly classified as independent contractors.  In reaching this decision, the Court determined that the cab companies “are not concerned with the results of plaintiffs’ operations, as drivers are not required to remit a percentage of their revenues, which includes both fares and tips.”  Id. at 334.

What sets the Boston Cab case apart from the Uber case is the existence of a regulatory framework that applies to cab companies and drivers that does not (at least not presently) apply to Uber drivers.  The Court specifically stated that its conclusion rested in large part on the existence of the regulatory framework of Boston Police Department Rule 403, Hackney Carriage Rules and Flat Rate Handbook (2008) (Rule 403), which creates a system whereby drivers can “operate as either employees or entrepreneurs with their own separately defined and separately regulated business.”  Boston Cab, 471 Mass. at 338.  In holding that drivers were properly classified as independent contractors, the Court found that the “harmonious reading” of Rule 403 and the independent contractor statute as set out in M.G.L. c. 149, §148B led to the outcome that the Legislature intended to preserve the ability of cab drivers to operate either as employees or independent contractors.  Id.

There is no denying that regardless of the still-unresolved employment classification issue, there  has been a cultural shift to more independent contractors as more people want to be their own bosses.  In fact, the number of freelance workers in the U.S. grew from 20 million in 2001 to 32 million in 2014.  A recent poll conducted by Time Magazine finds that now 22% of American adults—45 million people—have picked up some form of “gig” work for these on demand companies.

Some are advancing the position that perhaps there needs to be a new path forward to balance the realities of the rise of freelancing and the on demand economy.  On November 10, 2015, a number of stakeholders, including startups, more established companies, labor activists, and academics, published on open letter advocating that “we must find a path forward that encourages innovation, embraces new models, creates certainty for workers, business, and government and ensures that workers and their families can lead sustainable lives and realize their dreams.”

To that end, these stakeholders advocate for the creation of a universal set of benefits accessible to all workers, whether independent contractor or employee, that would be portable and flexible.  Following that open letter, many of the letter’s signatories participated in a policy discussion that included the Secretary of Labor, Tom Perez to discuss possible solutions.

Given the volume of worker misclassification lawsuits, the rise of freelancing as an increasingly popular choice for U.S. workers in lieu of more “traditional employment,” and the public interest in ensuring that the large number of independent contractors are provided certain basic protections, an innovative approach that provides more safeguards for independent contractors and more certainty to businesses regarding proper classification may be the right path to protect both workers and businesses.

Nancy Cremins is a partner at Gesmer Updegrove, LLP, assisting entrepreneurs with a range of issues, including employment matters and dispute resolution. She is the co-founder of SheStarts, which helps women entrepreneurs start and grow their businesses.


Recent Amendments to the Superior Court Rules and Standing Orders

Baer_Heather by Heather V. Baer

Heads Up

On January 1, 2016, a number of amendments to the Superior Court Rules went into effect. These amendments, which were approved by the Supreme Judicial Court, adopted new Rules 19, 30A, 31 and 33; amended Rules 7, 9A, 9C, 13, 17, 22, 29 and 30A; incorporated Standing Orders 1-06, 1-07 and 1-09 into new Rules; and deferred action on proposed new Rule 17A. This article highlights many of the significant amendments to the Rules. Readers are advised to review the Superior Court Rules in full to ensure that they are fully informed of all of the changes that affect their practices.

Rule 9A: Civil Motions.  A noteworthy amendment to Rule 9A, at 9A(a)(3), modifies the procedure related to reply memoranda. Litigants are no longer required to seek leave of court to file a five-page reply. To file a longer reply, which is “strongly disfavored,” a party must seek leave of court in the manner outlined in the revised Rule 9A(a)(3); and under the unchanged portion of Rule 9A(a)(5), any longer reply memoranda “shall not exceed 10 pages.” Sur-replies continue to be “strongly disfavored,” and leave to file them must be sought from the court. The Rule 9A amendment does not expand the circumstances in which reply memoranda are permitted, which remains “[w]here the opposition raises matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum” and the reply is “limited to addressing such matters.” Furthermore, it does not alter the requirement in Rule 9A(b)(2) that the full Rule 9A package be filed within ten days of receipt of the opposition.

Rule 13: Hospital Records.  Amended Rule 13 now requires that applications for orders for hospital records comply with Rule 9A if they are opposed. While previously a request could be filed after seven days notice to the opposing party, under the amended Rule 13 a party seeking an order for hospital records must now serve the adverse party with the request at least thirteen days before the order is needed, to allow for the possibility that the request will be opposed and that such opposition will be served by mail.

Rule 17: Recording Devices.  Revised Rule 17 now requires recordings and transmissions of court proceedings to comply with Supreme Judicial Court Rule 1:19 (Electronic Access to Court), which prohibits photographs, recordings and transmissions in any courtroom, hearing room, office, chambers or lobby of a judge or magistrate without prior authorization of the judge or magistrate. The amendment to Rule 17 also eliminates the requirement that any court order authorizing the recording or reproduction of the proceedings be issued upon the condition that no such recordation may be used to impeach, discredit or otherwise affect the authenticity or accuracy of the record or the official transcript.

Rule 22: Money Paid Into Court. Rule 22 has been amended to increase the threshold at which money paid into Court must be deposited into an interest-bearing account from $500 to $5,000. The revised Rule 22 also contains a new, second paragraph which provides that, when money paid into court is unclaimed for 30 days “after the claim(s) of every party to the funds has been eliminated by default or court order,” the clerk is directed to schedule an assessment hearing after which the session judge may enter final judgment escheating the funds to the Commonwealth. However, judgment to this effect may not enter any sooner than three years after the funds are paid into Court. This amendment is consistent with M.G.L. c. 200A § 6, which provides that money paid into court is considered abandoned after three years or as soon after three years as all claims made for those funds have been disallowed or settled by the court.

Rule 29: Cover Sheet; Statement as to Damages.  Rule 29(5) previously required Superior Court judges to transfer cases to the District Court if it appeared from the statement of damages in the civil action cover sheet that there was no reasonable likelihood that recovery would exceed the Superior Court threshold. It also permitted –  but did not require – judges to transfer such cases if it appeared from any pre-trial event that the threshold would not be met. Amended Rule 29(5) is consistent with M.G.L. c. 212 §3A(b), and now limits the basis for such a determination to the statement of damages in the civil action cover sheet, as opposed to any information developed at a pre-trial proceeding. It also permits the parties to make written submissions and be heard at a hearing on the issue. Finally, Rule 29 no longer compels the transfer of such cases to the District Court; instead, it permits (but does not require) judges to dismiss such cases without prejudice.

Former Rule 30A/[New] Rule 9C(b).  The provisions of former Rule 30A (Motions for Discovery Orders) have been renumbered without change as new Rule 9C(b) (the title of Rule 9C remains Settlement of Discovery Disputes).

[New] Rules 30A, 31 and 33. Three former Standing Orders were incorporated into the Rules. The verbatim texts of Standing Orders 1-06 (Continuances of Trial), 1-07 (Consolidation of [Civil] Superior Court Cases) and 1-09 (Written Discovery) were incorporated into the Superior Court Rules as new Rules 33, 31 and 30A, respectively, and those Standing Orders were repealed. This amendment streamlines the rules that govern Superior Court procedure as more of the procedures governing practice before the Superior Court can now be found in the same location, although lawyers should still check the Standing Orders.

The Rules in their Proposed form and the Supreme Judicial Court’s approval, may be viewed on the Judicial Branch’s website.

Heather V. Baer is a partner at Sally & Fitch LLP, where she focuses her practice on the representation of corporations and individuals in the areas of civil litigation, employment law and criminal defense, including white collar matters and government investigations.


The Misuse of MassCourts as a Free Tenant Screening Device

caramello_esmeduke_annetteby Esme Caramello and Annette Duke

Heads Up

“If I see that a prospective tenant has ever had a lawyer in any proceeding at http://www.masscourts.org as of this case forward I no longer take them as a tenant. This is a free country. They certainly have a right to hire a lawyer and I have a right to not take them as tenants because of that.” Massachusetts Landlords Blog, June 12, 2015.

The Trial Court’s Electronic Case Access system (MassCourts) was not intended to be a direct, online “free tool for tenant screening.” But that is how it is increasingly being promoted and used:

“After years of lobbying from rental housing groups, the Massachusetts Housing Court has finally announced a powerful new and free tool for tenant screening: public internet access to all Summary Process, Small Claims, Civil and Supplementary Process case types…. This new system will enable landlords to research whether a potential or current tenant has been a party to a previous eviction, small claims or related housing case.” The Massachusetts Real Estate Law Blog, “ Massachusetts Housing Court and Tenant Eviction History Now Online,” April 24, 2013 (emphasis added).

While careful, conscientious tenant screening can help landlords avoid problems with new tenants, the automatic refusal to rent to anyone whose name appears in an online court database is a dangerous form of tenant blacklisting. Tenants are sometimes forced by absentee or unscrupulous landlords to access the courts to protect their families from unsafe conditions. For example, one tenant, 8½ months pregnant and shoveling the walkway in front of her unheated apartment, turned to the court to force an unresponsive bank that owned her building to pay its bills and maintain the property. Another faced a retaliatory eviction lawsuit after reporting a building-wide bedbug infestation affecting the health of her neighbors, families, and friends. Still another was brought into court after her landlord discovered she had a female partner. Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.

While some landlords undoubtedly look beyond the mere fact of a tenant’s appearance in MassCourts to the actual “Disposition” or docket itself, even this increased level of scrutiny may not elicit an accurate picture of a tenant. MassCourts was not designed as a tenant-screening tool.  It is a case management database built to assist the court system in managing litigation, and it uses shorthand that suffices for that purpose. It does not tell the real story behind any landlord-tenant dispute. Most summary process dockets, for example, ultimately reflect a judgment for the landlord. This does not equate to a finding the tenant was at fault. The vast majority of tenants are unrepresented, and the few who are lucky enough to access legal assistance often do not agree to have a judgment enter against them, but instead secure dismissal of the case or a straight agreement (with no judgment of eviction) in which the parties make commitments to each other, such as payment of rent in exchange for repairs.

To make matters worse, there are inaccuracies in the MassCourts database. For example, a review of housing cases closed by the Harvard Legal Aid Bureau in 2013 showed that in nearly 10% of the cases, MassCourts incorrectly displayed a judgment of eviction against the tenant when there was none. In MassCourts, “no-fault” evictions are sometimes miscoded as “cause” cases. Cases that have been dismissed may appear as open, active cases or even judgments in favor of the landlord. Minor children may erroneously appear as parties in their parents’ eviction cases, potentially hurting their creditworthiness before they have a chance to enter the adult world. MassCourts remote access takes these errors and turns them into major barriers to housing, with no way for a tenant to even know that this information is being used by a landlord and no clear way to challenge its accuracy.

Other states have recognized the problems with court-enabled tenant screening and scaled back access. For example, in 2012, the Chief Administrative Judge of the New York State Office of Court Administration announced that the court would no longer include in the electronic data feed it sold to tenant screening companies the names of tenants involved in New York City Housing Court evictions. See Hon. Gerald Lebovits and Jennifer Addonizio, The Use of Tenant Screening Reports and Tenant Blacklisting, New York State Bar Association (2013). Applauding this action “to protect both New York’s tenants and the integrity of the court system,” one legislator explained: “When the fear of being ‘blacklisted’ causes many tenants to avoid the court and relinquish their legal rights, access to justice is fundamentally undermined.” Sen. Krueger Announces Courts to End Electronic Sale of Housing Court Data Used in “Tenant Blacklists (2012).

Massachusetts, through the Trial Court Public Access to Court Records Committee, can and should implement safeguards that protect tenants without impairing the public’s right to open courts. A very limited change to how party identification information is displayed online could counteract the misuse of MassCourts: tenant names should be replaced with numbers or initials in the online database. Parties and attorneys would still be able to access case information online with docket numbers. The official case record would still be public, would still include parties’ names, and could be accessed by going to court. This change would balance protecting tenants’ rights with keeping court records public.

With 40,925 eviction cases filed in Housing and District courts across the Commonwealth in FY 2014 alone, the easy, online use of MassCourts as a free tenant screening tool has become a serious access to justice issue. Without reform, tenants will increasingly fear that the consequences of coming to court will be that they won’t be able to find housing in the future, and they will not see courts as a place to seek justice.

Annette Duke is a housing attorney at the Massachusetts Law Reform Institute, a statewide nonprofit poverty law and policy center. She specializes in public housing and landlord-tenant law and is currently working with the Massachusetts Access to Justice Commission and a broad coalition of organizations to expand housing courts statewide.

Esme Caramello is the Faculty Director of the Harvard Legal Aid Bureau, a century-old student-run legal services organization that represents low income clients in housing, family, wage and hour, and government benefits cases. She is also a Clinical Professor at Harvard Law School, where she teaches courses in housing law and policy and legal skills and ethics.

 


Assessing the Right to be Forgotten

Lyons_Daniel by Daniel Lyons

Heads Up 

From its inception the Internet has been disrupting business models, as once-ubiquitous brands like Blockbuster, Borders, and Encyclopedia Britannica can attest. But as more of our activities move online, society is beginning to realize how it can disrupt individual lives as well. In 2013, the tech world watched in real time as an ill-advised tweet to 170 followers began trending worldwide and cost 30-year-old PR director Justine Sacco her job while she flew from London to Cape Town, oblivious to the firestorm she had ignited below. More recently, the hack of the adultery facilitating website Ashley Madison has revealed financial information, names, and intimate details about millions of users online. Our lives increasingly leave digital fingerprints that can prove embarrassing or damaging when revealed on the network.

The “Right to be Forgotten” is the European Union’s attempt to smooth these rough edges of cyberspace. The term originated with Mario Costeja Gonzalez of Spain, who defaulted on a mortgage in 1998. To foreclose on the property, the bank dutifully published a notice of default in Costeja Gonzalez’s local newspaper and its online companion. Because Google indexed the site, the notice featured prominently in search results for Costeja Gonzalez’s name, even years afterward. Embarrassed that his default was among the first facts the Internet recited about him, Costeja Gonzalez sued both the paper and Google under the EU Data Protection Directive, which governs the transnational flow of personal information in EU countries. He alleged that the notice infringed on his right to privacy and requested that the companies delete them.

The European Court of Justice (“ECJ”) largely agreed, at least as to Google. Deciding the case on laws governing privacy and protection of personal data, the court explained in a decision dated May 13, 2014, an individual should have the right to request that a search engine remove links to information about an individual that are “inadequate, irrelevant or no longer relevant, or excessive.” Importantly, the individual need not show the revelation of the information is prejudicial, because one’s right to privacy should override a search engine’s economic interests in listing search results. But the court was careful to note that there could be an exception if the individual’s right to privacy was outweighed by the public’s interest in having access to the information in question.

The Costeja Gonzalez opinion addresses an important digital-age problem. It is exceptionally easy to post false, misleading, or simply embarrassing personal information online, and once that information is posted, it is exceptionally difficult for the subject to remedy the situation. Costeja Gonzalez’s embarrassment at a decades-old foreclosure may seem trivial. But the same dynamics plague countless others like Ms. Sacco who are forever tarred by a momentary lapse in judgment. It also affects wholly innocent victims whose private details are posted online, such as the subjects of so-called “revenge porn” sites.

Such incidents illustrate the dark side of the information revolution. The genius of the Internet is its ability to reduce information costs. Any information can be reduced to a series of 1s and 0s, replicated, and transmitted anywhere around the world, instantaneously and virtually without cost. This makes it an exceptional tool for communication and learning. But it can hurt those whose self-interest depends upon controlling the flow of information. Dictators have been hobbled by the Internet’s ability to perpetuate ideas and information while connecting underground resistance groups. More benignly, record labels and movie studios have fought a decade-long war against online piracy. What copyright is to Universal, privacy is to the individual: a right to determine if and when certain information becomes public. The Right to be Forgotten is an attempt to force the Internet to respect these rights, by regulating one of the few bottlenecks in the Internet ecosystem: search engines that guide users to information online.

But the ECJ decision is an unworkable solution that risks doing more harm than good. First, the decision applies only to search engines, meaning the information in question is never actually “forgotten.” Google must suppress links to Costeja Gonzalez’s foreclosure notice, but the newspaper itself remains free to leave the notice available online. Second, the court’s standard is astonishingly vague. The decision relies upon Google and other search engines to determine whether a particular link is “inadequate, irrelevant…or excessive,” and if so, whether the “public interest” nonetheless requires the link to remain posted. The court envisions Google analysts assessing the harm that each item causes to the claimant, and carefully balancing that harm against the public’s right to know a particular fact. In reality, Google faces liability for denying legitimate takedown requests but not for granting frivolous ones. This means that the company is likely to err on the side of granting most requests rather than evaluating each request individually—especially when one considers the cost of evaluating potentially millions of such requests each year. Numerous commentators have criticized the similar selection bias evident in the Digital Millennium Copyright Act copyright takedown regime under US law, leading to the removal of a significant amount of non-infringing material.

More generally, the Right to be Forgotten decision raises broader questions about an Orwellian power to distort history. Unsurprisingly, media organizations are some of the decision’s biggest critics, as they fear individuals will misuse the process to sanitize their pasts. There is some evidence to support this concern: among the first claimants was a British politician seeking to hide his voting record from the public and a convicted sex offender who wants his status kept hidden.  In Massachusetts, it runs counter to the current push for broader public access to court proceedings, particularly in cases involving police officers and other public officials charged with criminal offenses.  In this sense, the EU decision is only part of a broader social conversation about selective disclosure, which also includes the ethics of photoshopping models, contracts prohibiting users from posting negative reviews online, and the use of social media to present idealized images of ourselves online. As the merits of the “Right to be Forgotten” are debated in the United States, it is important that any dialogue, as well as any proposed solutions, carefully balance the rights of both the individual and society to open, accurate, and fair historical information.

Daniel Lyons is an Associate Professor (with tenure) at Boston College Law School, where he specializes in telecommunications, Internet law, administrative law, and property.


Amendments to the Uniform Rules of Impoundment Procedure

Carey_Paula Stanton_Joeby Chief Justice Paula M. Carey and Joseph Stanton

Heads Up

The Supreme Judicial Court has approved amendments to Trial Court Rule VIII, the Uniform Rules on Impoundment Procedure (URIP), which become effective on October 1, 2015.  The URIP have not been amended since their adoption in 1986.  The newly approved amendments are the product of the Trial Court Advisory Committee on Impoundment Law and Procedure, which recommended many substantive and stylistic changes in order to conform the URIP to case law and to facilitate their use.  These amendments include application of the URIP to criminal proceedings, a trade secret exception, and imposition of a duty on filers to notify the court of any filing containing impounded information.  Additionally, the committee has issued the Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure (“Handbook”), which contains annotations and guidance for each rule.  This article identifies the substantive changes to the newly amended rules.

Rule 1 Applicability and Definitions.  Most significantly, the URIP as amended are expressly applicable to criminal proceedings, as well as civil proceedings, in each Department of the Trial Court.  Also, the language in the prior Rule 1, which permitted a court to impound the existence of a case from the court’s docket or index, has been deleted.

Rule 2 Motion for Impoundment.  Several substantive amendments have been made to conform the URIP to case law.  The new Rule 2(a) requires that the movant describe with particularity the reasons why impoundment is necessary, why alternatives are inadequate, and identify the requested duration of the order.  It also requires that the movant file a proposed order and findings, as well as an affidavit in support of the motion.  Rule 2(a)(3) requires the motion and supporting affidavit to be publicly available unless otherwise ordered.  Rule 2(b)(1) mandates that a motion for impoundment must be filed and ruled upon prior to submission of the materials sought to be impounded, unless filed pursuant to Rule 2(b)(2)’s new procedures for in camera review.  If the court denies a motion for impoundment after in camera review, the movant will have fourteen days to retrieve or file the documents, after which unretrieved materials will be destroyed.

Rule 3 Ex Parte Impoundment.  Rule 3 has been substantively amended due to the application of the URIP to criminal proceedings.  Rule 3 provides that upon a motion and affidavit, or by the court sua sponte, and a showing of immediate and irreparable injury, as well as good cause, the court may enter an ex parte order of impoundment for ten days, unless otherwise extended for good cause shown.  The court may, but is not required to, hold a hearing before issuing an ex parte order of impoundment.  Any party or interested nonparty aggrieved by an ex parte order may file a written motion to vacate or modify.  Rule 3(e) establishes the procedure for filing an ex parte motion to impound materials related to the issuance and/or execution of a search warrant, including any motion to modify or terminate such an order.

The Handbook contains examples of common situations when ex parte orders are entered, including search warrants containing sensitive investigative information, documents pertaining to an ongoing grand jury investigation, or information the public disclosure of which could compromise a defendant’s right to a fair trial or the Commonwealth’s interest in the fair administration of justice.

Rule 4 Service.  Service of filings under URIP is effected pursuant to the Rules of Civil Procedure.  Notably, this continues the current practice of employing essentially the same service methods for civil and criminal proceedings.  Rule 4(d) instructs that an interested nonparty’s motion to obtain access to impounded documents in a criminal case should be served on the parties and on the Office of the Attorney General (OAG), who shall have an opportunity to be heard on the motion.  The movant has the burden to notify the court of the OAG’s right to be heard.  Rule 4(e) requires that the affidavit of service specify the names and addresses of those served, and the method and date of service.

Rule 6 Involvement of Interested Nonparties.  The title of Rule 6 has been amended from “Motion by Third Person to be Heard” to “Involvement of Interested Nonparties.”  Rule 6 governs the participation of  an “interested nonparty,” which Rule 1(b)(11) defines as:

[A] person who is not or was not a party to the underlying matter in which an impoundment issue has arisen, but who nevertheless expresses to the court (through a motion, an appearance limited to impoundment,  filing, or otherwise) an interest in the impoundment proceeding, or who has been named by the court as a person who shall receive notice.

Rule 6 allows an interested nonparty to request, oppose, modify, or terminate an order of impoundment.  The rule sets forth different procedures for pending cases and cases in which a final disposition has been entered.

Rule 7 Hearing.  Rule 7 continues the URIP requirement that a hearing shall be held before the court enters an order of impoundment, except as otherwise provided in the URIP.  Rule 7(b) adds a non-exhaustive list of factors a court shall consider in determining good cause, including, for instance, balancing in criminal proceedings the public’s right of access against the defendant’s constitutional right to a fair trial.  Whereas the prior version of Rule 7 permitted the court to close the entire hearing if a public hearing would risk disclosure of information sought to be impounded, the new Rule 7(d) authorizes the court to conduct, in camera, only that portion of a hearing that may risk disclosure.

Rule 7(e) as amended includes a trade secret exception to the requirement for a hearing.  The court may allow a motion for impoundment without a hearing upon a finding of good cause when “(1) the reason for the impoundment is to protect trade secrets or other confidential research, development, or business information, (2) the motion is by agreement or the motion is unopposed, (3) no party or other person has requested a hearing, and (4) the information does not involve an alleged or potential public hazard or risk to public safety.”

Rule 8 Order of Impoundment.  Rule 8(a) states that “[a]n order of impoundment, whether ex parte or after notice, may be entered only upon a written finding of good cause.”  Rule 8(b) requires the order to identify specifically the material to be impounded, and include a date certain for expiration of the order.  Rule 8(c) requires the court to narrowly tailor the scope of the impoundment, and authorizes the court to require the filer to submit a redacted copy for public inspection.  Rule 8(d) provides that the order be entered on the docket, kept in the public file, and made available for public inspection.  “The order shall provide sufficient information for the public to identify the case caption, the case number, and to ascertain the grounds, duration, and scope of the impoundment.  All information stating or disclosing the impounded material shall be omitted or redacted from the order prior to public inspection.”

Rule 12 Review.  The amendments to Rule 12 are significant, but principally codify existing procedures established by case law.  Rule 12 now distinguishes between two procedures for review of impoundment orders, depending on whether the order was entered in “ongoing proceedings” or in “proceedings which have concluded.”  Under Rule 12(a), applicable to ongoing proceedings, a party or interested nonparty aggrieved by an order entered under the URIP may seek review from a single justice of the Appeals Court, in accordance with the procedures governing single justice practice.  Under Rule 12(b), which governs concluded proceedings, challenges to URIP orders must proceed in accordance with the Massachusetts Rules of Appellate Procedure.

Rule 13 Maintaining Confidentiality of Impounded Material.  Rule 13 is a new rule.  It imposes a duty on the filer of any document to ascertain whether any information in the document has been designated “impounded” by order, statute, court rule, standing order, or case law.  For any such document, Rule 13(b) requires that the filer “shall (i) notify the clerk that impounded information is included within the document being filed; (ii) identify the specific legal authority requiring impoundment of the identified information; and (iii) identify the precise location of the impounded information within the document being filed.”  The cover page of the document containing the impounded information must identify that it is impounded.  Rule 13(c) imposes upon “all persons” a duty to protect the confidentiality of impounded materials, and prohibits the unnecessary disclosure of impounded information at hearings, trials or in written filings.  Rule 13(d) states that the inadvertent filing of a document containing impounded information does not waive the confidentiality of the information.  In such instances, any party may file a motion to strike such material from the record, or the court may act sua sponte to strike the material and/or order it refiled with the appropriate notice and any necessary redaction.

Handbook. The Handbook, in addition to annotations and guidance as to each rule, contains sections intended to promote uniformity and consistency in the administration of URIP filings and orders, and in the clerk’s handling of impounded materials.  The Handbook also contains a sample impounded notice form for filers, a sample order form for the court, and a list of Massachusetts authorities that designate certain information as impounded, confidential, or not available for public inspection.

The full text of the amended URIP is posted on the Judicial Branch’s website, including the Handbook which, thanks to the efforts of the Trial Court Law Libraries personnel, contains hyperlinks to the referenced authorities. Also, as of the time of submission of this article, the Appeals Court has posted for public comment proposed amendments to its Standing Order Concerning Petitions to the Single Justice, which will govern the filing requirements for a petition for review of an impoundment order, pursuant to URIP Rule 12(a). In addition, the Supreme Judicial Court has proposed amendments to S.J.C. Rule 1:15, which governs impoundment procedure in the appellate courts. It is anticipated that these amendments will become effective on October 1, 2015, the effective date of the amendments to Trial Court Rule VIII.

 

Trial Court Chief Justice Paula Carey and Appeals Court Clerk Joseph Stanton are co-chairs of the Trial Court Advisory Committee on Impoundment Law and Procedure.


The New “Documents Only” Subpoena Under Recently Amended Mass. R. Civ. P. 45

Maycotte_Carlosby Carlos A. Maycotte

Heads Up

Earlier this year, the Supreme Judicial Court amended Rule 45 of the Massachusetts Rules of Civil Procedure, which concerns subpoenas. The main purpose of the amendments is to give Massachusetts practitioners the ability to issue “documents only” subpoenas to non-parties. Now, attorneys need no longer notice depositions of non-parties when the only goal is to obtain production of documents.

The amendments were effective as of April 1, 2015. Before that date, attorneys in Massachusetts followed a convoluted procedure: a notice of deposition and a subpoena duces tecum were served on a non-party, commanding that non-party to appear at a Keeper of the Records deposition with the specified documents. The non-party would instead send the documents outlined in the subpoena duces tecum (with a sworn certification) to the issuing attorney, who would then waive the non-party’s appearance at the deposition. The issuing attorney would then have the documents and the non-party would never appear at a deposition.

To streamline the process, the Supreme Judicial Court amended Mass. R. Civ. P. 45 to track the language of and the procedure described in the Federal Rules of Civil Procedure. The amendment eliminates the superfluous steps described in the previous paragraph by creating a new class of subpoenas. Now, the attorney may serve a “documents only” subpoena, and the person receiving it “need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.” The subpoenaed party can simply send the documents to the issuing attorney.

Where the previous incarnation of Mass. R. Civ. P. 45(a) provided generally that a subpoena shall “command each person to whom it is directed to attend and give testimony at a time and place therein specified,” the amended rule provides greater detail, stating that a subpoena shall “command each person to whom it is directed to do the following at a specified time and place: to attend and give testimony; to produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or to permit inspection of premises.” By listing the several purposes for which a subpoena may be issued, the amendment has created new categories of subpoenas that can be targeted for a more economical civil practice.

The new procedure for issuing “documents only” subpoenas in the amended Mass. R. Civ. P. 45(b) further provides that commands to produce documents or electronically stored information may be set out in subpoenas separate from those that command attendance, and that the subpoena “may specify the form or forms in which electronically stored information is produced.” Practitioners will be able to use this provision to require that the document production be made in a specified format, so that they are able to compile and review documents more effectively.

The amended rule also provides certain protections for non-parties. The reporter’s notes recognize that the person receiving a subpoena may have “no stake in the case” and may not have the assistance of counsel. Thus, a party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” A non-party on whom a subpoena is issued has 10 days from the date of service to object to the subpoena and must serve the objection on all parties. After an objection has been made, the burden shifts to the issuing party, who must then justify the need for the documents via a motion to compel. In practice, Massachusetts courts have generally been protective of non-parties in the discovery context, and these protections will likely be reinforced by the amended rule.

At the same time, the amended Mass R. Civ. P. 45(c) specifies that the requirement to tender fees to a person served with a subpoena does not apply to cases where the person is not commanded to appear – meaning that while a non-party may have an easier time complying with a subpoena, he or she may not receive a fee, however nominal, for doing so.

Although the amendments to Mass R. Civ. P. 45 align the Massachusetts rule more closely to the federal rule, important differences remain. Mass R. Civ. P. 45(d)(1) provides that prior to the service of a “documents only” subpoena on a third person, a copy of the subpoena must be served on all parties to the case. This differs from the federal rule, which requires that both notice and a copy of the subpoena be served on all parties to the case. The Massachusetts rule eliminates an unnecessary step, allowing a copy of the subpoena to operate as adequate notice that a subpoena has been served. Unlike the federal rule, this provision in the Massachusetts rule also tasks the issuing party with serving copies of any objection to the subpoena on all parties. In addition, the issuing party must serve all other parties with either notice that a production was made or an actual copy of the documents produced.

These amendments should help make civil procedure more efficient. By eliminating the need to notice a deposition and issue a subpoena to non-parties from whom only documents are needed, less paperwork will be required from issuing parties. The streamlined procedure will save practitioners time, and clients, money. The amendment to Mass R. Civ. P. 45 should be well received by Massachusetts attorneys.

 

Carlos A. Maycotte is an associate at Sally & Fitch LLP, where he works primarily in the areas of family law, international arbitration and litigation, and general civil litigation.


The Introduction of Attorney-Conducted Voir Dire in Massachusetts

Smith_Markby Mark D. Smith

Heads Up

Last year, the Massachusetts Legislature enacted General Laws chapter 254, §2, permitting attorneys (and self-represented parties) in Superior Court criminal and civil cases to examine prospective jurors.  The Supreme Judicial Court subsequently created the Committee on Juror Voir Dire composed of judges, court officials, academics, and practitioners to help implement the new statute.

The Committee’s efforts led to two important initiatives: Superior Court Standing Order 1-15, an interim order setting forth the procedures for attorney-conducted voir dire in the Superior Courts, and, in conjunction with the Superior Court, the creation of the Panel Voir Dire Pilot Project, which will provide the opportunity to conduct group or “panel” voir dire in selected Superior Courts.

The Standing Order now guides the process for all attorney-conducted voir dire in the Superior Courts.  For now, it will be up to the discretion of each individual Superior Court Justice whether to permit attorney-conducted voir dire, except in the case of Superior Court Justices who have volunteered to participate in the Pilot Project, where the right to attorney-conducted voir dire will be automatic.

The Standing Order

An attorney who wants to examine prospective jurors must first file a motion requesting leave to do so.  In civil cases, the motion must follow the procedures of Superior Court Rule 9A.  In criminal cases, the motion must be served on all parties at least one week before filing and the opposition shall be filed with the court not later than two business days before the scheduled date of the final pre-trial conference.  The motion shall identify generally the topics of the questions which the moving party proposes to ask prospective jurors, though reasonable follow-up questions will be permitted.  The trial judge decides what questions are appropriate, but must give due regard to: (a) selecting jurors who will decide the case fairly and based solely on the evidence and the law; (b) conducting the selection process with reasonable expedition: and (c) respecting the dignity and privacy of each potential juror.

Generally, a court should approve questions that: (a) seek factual information about a prospective juror’s background and experience pertinent to the issues expected to arise in the case; (b) elicit pertinent preconceptions or biases; and (c) inquire about the prospective jurors’ willingness and ability to accept and apply pertinent legal principles.

A court should generally disapprove questions that: (a) duplicate questions appearing on the juror questionnaire; (b) seek information about a potential juror’s political views or voting pattern; (c) ask about the outcome of or deliberation in any trial in which the prospective juror has previously served; or (d) purport to instruct jurors on the law, require speculation about facts or law, are argumentative or would tend to embarrass or offend jurors, or unduly invade their privacy.

As in prior practice, before any jurors are questioned, the trial judge shall provide the venire with a brief description of the case, including the facts alleged and the claims or charges being brought, as well as brief preliminary instructions on legally significant principles such as the standard of proof and the basic elements of the civil claims or criminal charges.  The judge then shall proceed to ask all questions required by statute, and any other questions necessary to find jurors indifferent.  As with prior practice, the judge may ask these questions of the venire as a group but should conduct at least part of the questioning of each prospective juror individually outside the presence or hearing of other jurors.

After the judge has found an individual juror indifferent and able to serve, the judge shall permit the attorneys to ask the previously approved line of questions.  The questioning shall begin with the party having the burden of proof.  The judge may require the questioning of each prospective juror to be conducted individually and outside the presence (or at least the hearing) of the other potential jurors.

Perhaps the most significant provision of the interim order is that it allows counsel to question jurors as a panel during voir dire.  In such group questioning, the judge shall not permit questions that would elicit sensitive, personal information about an individual juror or that would specifically reference information provided in the jurors’ statutory confidential jury questionnaire (such information is required to be kept confidential under Chapter 234A, §23 and so may only be elicited outside of the presence or hearing of the other members of the jury pool).  If this procedure is followed, jurors shall be identified on the record by juror number only.

The trial judge may set a reasonable time limit for questioning of prospective jurors by attorneys, according to guidelines set forth in the interim order.  Once the attorneys are through questioning, the parties may assert challenges for cause, even though the judge previously found the challenged jurors indifferent.

The Panel Voir Dire Pilot Project

To facilitate the introduction of so-called “panel voir dire,” a subcommittee of the Committee on Jury Voir Dire and the Superior Court created a Pilot Project in which certain Superior Court Justices have volunteered to conduct panel voir dire according to the principles established in the Standing Order.  (The list of participating Courts can be found on the Trial Court website.) The Pilot Project will gather data on attorney-conducted voir dire to evaluate the efficacy of this selection process.  Upon the completion of the Pilot Project, the Committee will issue a report on its findings, including suggested changes to the Interim Standing Order.

In Pilot Project courts, parties must still make a request for attorney-conducted voir dire in compliance with Standing Order 1-15.  In cases where the parties are represented by counsel, jury selection in the Pilot Project shall include panel voir dire except for good cause shown.  At the final pretrial conference, the judge shall confer with counsel as to the mechanics of the panel voir dire process, including the use of a supplemental jury questionnaire and the establishment of time limits on questioning.

At trial, once the preliminary steps in jury selection are completed, the court should seat up to 16 jurors based on the judge’s preliminary findings of indifference.  As the jury box is filled, and before any attorney questioning is allowed, the clerk shall read into the record which juror, identified by juror number, is seated in which numbered seat.  It is incumbent upon the trial attorneys to correct any misstatements regarding any potential juror’s number and seating.  Also, as in prior practice, it is important for attorneys to keep track of this designation as they must address potential jurors by their identification number rather than by name.

Parties with the burden of proof shall conduct the questioning first.  In cases in which multiple parties are on the same side, the parties on each side shall agree to an order in which to proceed.  The questions may be posed by counsel to the entire jury panel or to an individual juror.  An attorney is free to object to any question posed to the jury panel by an opposing attorney, and the court may openly rule on the objection.

During this process, the nature of a proposed question or the particular circumstances of an individual juror may warrant bringing a juror to side bar.  The judge may rule on any challenge or cause at that time or at the conclusion of the panel questioning.  Furthermore, if the juror is brought to side bar, the judge may direct the parties to do their own questioning on the same subject matter at that time to avoid the need to return to side bar for related questioning. No follow-up questioning of a panel is allowed once an attorney has had his or her turn with questioning an individual juror except in the judge’s discretion and for good cause shown.

After all parties have questioned a panel, challenges for cause shall be heard and ruled upon at side bar.  The parties then exercise any preemptory challenges they have as to the remaining panel members.  Again, the party with the burden proceeds first, using all preemptory challenges the party seeks to use with that panel. If the first round of questioning of jurors does not result in a full panel, the same procedure shall apply for all subsequent panels required to seat a full jury.

The Superior Court will solicit feedback from participants in the Pilot Project, including judges, court personnel, attorneys, and jurors. It is expected that this feedback will be used to evaluate attorney-conducted voir dire and modify Standing Order 1-15 as appropriate.

Conclusion

The introduction of attorney voir dire in Massachusetts is a significant development in trial practice and a new opportunity for trial counsel, though the practical effects of attorney voir dire remain to be seen.  Whatever those effects might be, it is important for trial attorneys to learn and properly apply the interim procedures and then provide appropriate feedback to help shape the final form of these rules.

 

Mark Smith is a partner at Laredo & Smith, LLP, where he concentrates his practice in white collar criminal defense and government investigations.  He serves as a member of the Supreme Judicial Court’s Committee on Juror Voir Dire.