by Hon. Maura S. Doyle, Francis V. Kenneally, Joseph Stanton and Kim J. Wright
Voices of the Judiciary
In the spring of 2014, the Massachusetts Judicial Branch contracted with Tyler Technologies, Inc., to pilot e-filing through Tyler’s Odyssey File and Serve platform. Although the Federal PACER system is well established, it is not available to states, necessitating that Massachusetts develop its own system. Three departments of the Trial Court, and each of the appellate courts, designated certain case types – and in the case of the Trial Court departments, pilot locations – for their respective e-filing pilots. Over the next 18 months, pilot court personnel teamed with the Courts’ Judicial Information Services Department and Tyler Technologies to establish both a general e-filing system for the Judicial Branch and specific systems tailored to each pilot court’s particular filing requirements. After extensive testing and training of volunteer attorneys for each pilot court, attorneys who regularly filed pilot case types in those pilot courts were invited to e-file. The e-filing system allows a user registered with Tyler to remotely upload a pdf for a court filing in a specific case, select the appropriate court description of the filing from a dropdown menu, electronically serve it on other parties, and file it electronically with the court, generating an appropriate entry on the docket and a link to the pdf in the court’s document management system, without any paper original or duplicate being filed. Tyler charges a modest convenience fee for civil filings that the courts can waive for indigent parties and government filers.
Beginning in the fall of 2015 and continuing through the spring of 2016, the various pilots were conducted on a phased basis. In June 2016, participants conducted an assessment of the pilots, toward a decision whether to proceed with Tyler beyond the pilots to full implementation. Attorneys were asked specifically for input on the registration process, the value of any assistance received from the vendor and specific questions about the e-filing process, including adding service contacts, serving documents through the Odyssey File and Serve, uploading pdfs and making payments.
Overall, responses to the survey were positive. The overwhelming majority of attorneys indicated that they did not encounter problems in registering as a filer, found filing cases to be “easy” or “moderately easy,” had little difficulty uploading PDF documents, and did not encounter problems with making a credit card payment. Comparatively modest concerns were identified for adjustment and improvement during continued implementation. Based on the positive results of the assessment, the Supreme Judicial Court, the Appeals Court and the Trial Court decided to move forward with Tyler Technologies and expand e-filing.
A Closer Look
Before describing the current – and future – state of e-filing in the Appellate Courts it is worth taking a brief look back at the foundation the Courts built over the past decade, in preparation for e-filing. During that time, the Courts have adopted a number of paperless practices, including: scanning decision-related documents (e.g., briefs, transcripts, and record appendices); coordinating with the Trial Court for production of transcripts in PDF; adopting standing orders for court notices and filings by e-mail; permitting electronic signatures and service; encouraging Judges and court personnel to utilize PDFs and electronic editing features in their daily work, and equipping them with the necessary software and hardware to do so; storing PDFs in the Courts’ document management system for access by all court personnel; electronic distribution of, and remote access to, case documents by Justices; and, within the Appeals Court, reducing the number of required paper copies from 7 to 4. Briefs in non-impounded cases scheduled for argument are made available to the public on the Courts’ website. For the past year or two, the overwhelming majority of judges on the Appeals Court, and a majority of the Justices on the SJC, have prepared for, and participated in, oral argument working exclusively from PDFs on an iPad, and iPads also are used by staff attorneys and other personnel to assist in their paperless practice. The Reporter of Decisions electronically edits and publishes the Courts’ opinions, and has transitioned to a completely paperless release of advance sheets.
In addition, the SJC for the Commonwealth has transmitted briefs and transcripts to the U.S. Supreme Court via cloud-based technology. Within the SJC for Suffolk County, more than 3,000 annual petitions for admission to the bar are scanned and electronically stored, before being digitally reviewed by the Board of Bar Examiners, single justice decisions are electronically transmitted upon request, and most written communication between counsel and the clerk’s office occurs by email. More than 4,000 annual filings of required bar admission data from law schools and the National Conference of Bar Examiners, formerly in hard paper copies, now are filed in digital format and are stored in the court’s case management system, and partial electronic processing has led to a reduction by more than fifty percent in hard copy paper filings incident to requests for Certificates of Admission and Good Standing. Finally, the Appeals Court stored over 17,000 pdfs of court filings in 2016.
In sum, the paperless foundation and experience developed over the past decade has prepared the Appellate Courts for the advent of electronic filing.
The Supreme Judicial Court for the Commonwealth launched its e-filing pilot on November 2, 2015. For the first time, attorneys e-filed applications for direct and further appellate review, a significant departure from past practice where the appellate rules require 18 paper copies – on average over 1000 pages per application. The build-up to the launch required extensive planning by the clerk’s office and assistance from attorneys, civil and criminal alike, who beta-tested and provided critical feedback that led to improvements in the e-filing system. On October 14, 2015, Clerk Kenneally conducted a free e-filing seminar sponsored by MCLE and attended by hundreds online and in Boston. MCLE continues to offer the archived program free of charge on its website. Perhaps the most telling statistic to illustrate the success of e-filing to date is the high rate of attorney participation particularly in light of national averages where e-filing is not mandatory. Tyler Technologies, the project’s e-filing vendor, estimates that participation rates in states where e-filing is not mandatory is about 15%. The clerk’s office for the Commonwealth presently has an estimated 80% participation rate that has led to substantial savings in time and money for attorneys who no longer have to worry about the burden of printing paper, delivering applications, and rushing to the courthouse by closing time. For the Justices of the Supreme Judicial Court, accustomed to reviewing over 100 paper applications monthly, e-filed versions are now loaded onto iPads that provide portability and ease of use. At present, expansion from applications to briefs and appendices in full court cases is under review and the clerk’s office hopes to offer further relief from paper production in the future.
In January, 2016, the Supreme Judicial Court for the County of Suffolk initiated its e-filing pilot, encompassing all bar docket cases filed on and after January 1, 2016. This required extensive training of the staff at the Clerk’s Office, Office of Bar Counsel and the Board of Bar Overseers (BBO). Because bar discipline actions are initiated by only two entities, the Office of Bar Counsel and the BBO, all such actions are now filed electronically. Any responsive pleadings that are not e-filed are scanned by the County Clerk’s Office, thereby making all pleadings entered in any bar docket cases filed on or after January 1, 2016, entirely electronically available. In 2017, Clerk Doyle will be implementing the e-filing of petitions for admission to the bar on motion and, thereafter, petitions for admission to the bar by examination.
Among all the Courts, e-filing is perhaps furthest along at the Appeals Court. The Appeals Court launched its e-filing pilot in March 2016, allowing attorneys to initiate and file most documents electronically in civil, non-impounded panel appeals, without any paper original or duplicate filing. The court has since expanded its program to include criminal appeals, self-represented litigants (SRLs), andimminently, the single justice (“J”) docket (e.g., interlocutory petitions). The Appeals Court now accepts electronic filing of nearly every type of document from attorneys and SRLs in all non-impounded cases, with no paper required. Thus, briefs, record appendices, transcripts, motions, status reports, and payment of entry fees may be filed electronically.
Attorneys and SRLs are enthusiastic and e-filing at high percentages, with participation tripling over the winter as several hundred e-filings are submitted monthly. E-filed briefs already exceed the number of paper briefs filed each month and the parties–including CPCS and government filers–are saving significant costs by not providing multiple paper copies of record appendices. To file and serve electronically, filers first need to become familiar with new procedures and software programs. Creating a PDF with optical character recognition, merging a word-processed brief with a scanned addendum into a single PDF, or creating an e-filing account and identifying service contacts for each submission involve new steps–but once completed are easily reproduced the next time. The Appeals Court’s website provides detailed e-filing explanations and user guides about the court’s procedure and format requirements.
Upon entry of every new case in all three appellate courts, the clerk’s office notifies the parties in writing about the availability of e-filing and includes information on how to become a registered user and to view information on e-filing, including court rules and training videos, through Tyler Technologies. The Clerk’s Offices in all three appellate courts also provide daily telephone assistance to e-filers and have held several public training seminars.
The Appellate Courts’ e-filing programs have increased access to justice by providing SRLs the opportunity to e-file and substantially reducing their copying and shipping costs. Further, indigent parties may obtain waiver of e-filing related costs. Additionally, the Clerks’ Offices provide a public computer with a scanner where any litigant or attorney can scan and e-file documents. In addition, the Appeals Court has launched a pilot program allowing Trial Courts to electronically transmit the assembly of record on appeal, and the SJC and Appeals Court send electronic notices of orders and decisions to lower court clerks, judges and counsel (in the case of the SJC for Suffolk County, Bar Discipline orders and decisions similarly are sent electronically to the Board of Bar Overseers, the Office of Bar Counsel, respondent, and counsel).
The Trial Court piloted the program at three separate courts – Worcester District Court in September 2015, the Brighton Division of the Boston Municipal Court (BMC), and the Essex Division of the Probate and Family Court in early 2016. The Quincy District Court became an additional site in March 2016. In the District and Boston Municipal Courts, the pilots included civil case types, while the Probate and Family Court designated Estate Cases to be e-filed.
For the past several months all Trial Court departments have been actively engaged in planning expansion and implementation, with the pilot court departments taking the lead. In those departments, the expansion includes additional case types and locations. Over the next six months, the District Court and BMC will work to provide e-filing for all civil cases, including small claims and supplementary process in all locations. The Probate and Family Court will expand to all locations and will increase available case types from the designated Estate Matters to Divorce complaints filed pursuant to G. L c. 208, § 1B, and adult guardianship matters.
The expansion of e-filing in these departments will be done through a series of phases beginning in the spring and continuing throughout the year until the opportunities for e-filing are available at all of those court locations throughout the state. The expansion is being planned by geographical regions in order to provide attorneys with the opportunity to use the electronic filing in the various courts they frequent. In March, Probate and Family Court locations in Bristol, Norfolk and Duke Counties and District Courts in Fall River, Attleboro, Taunton, New Bedford, Edgartown Brookline, Dedham, Stoughton and Wrentham all went live. The second phase, scheduled for early May, will bring e-filing to Probate and Family Courts in Plymouth, Barnstable and Nantucket, and District Courts in Barnstable, Falmouth, Orleans, Nantucket, Wareham, Brockton, Hingham, Plymouth, Milford and Uxbridge.
Plans are also underway to expand e-filing to the Land, Housing and Superior Court Departments. Implementation teams are meeting and plans for intricate code set up and integration and testing are in place. A comprehensive effort to train employees across the state is planned and Tyler Technologies will provide materials and free training opportunities for the bar.
The Superior Court pilot will offer e-filing for all tort actions. The Superior Court will begin by piloting the process in Middlesex and Barnstable Counties and then expand to the remaining County locations.
The Housing Court pilot will make e-filing available in Small Claims and Summary Process matters. The initial pilot site will be the Boston Housing Court.
The Land Court is in the early planning stage but its singular location will ensure a quick roll out once set up, testing and training is completed.
Tyler Technologies has also provided the Trial Court with access to its online guided interview tool, Odyssey Guide and File, for self-represented litigants. The Guide and File technology provides the opportunity for the Trial Court to improve Access to Justice for self-represented litigants through the creation of on line interviews that populate the court form that will eventually be e-filed into the system. The first such interview technology has been designed for use in Small Claims actions. The Trial Court also plans to use this tool to develop a similar instrument for Summary Process matters, another case type of interest to a large percentage of self-represented litigants.
Interim Electronic Filing Rules for Pilot Courts were approved by the Supreme Judicial Court in February 2015 with accompanying Standing Orders in each of the pilot court departments. As the courts move ahead with the expansion of e-filing, proposed amendments to the interim rules, and adoption of Rules of Electronic Filing Procedure, are posted for public comment until May 31, 2017, and thereafter will be submitted to the SJC for approval.
The Trial and Appellate Courts have established a listserv to provide updates and information as e-filing progresses. If you would like to receive periodic updates on e-Filing as they become available, you are welcome to join the e-filing news list serve. To join, just send an email to firstname.lastname@example.org
The e-filing pilot courts appreciate the efforts of the court personnel, the Judicial Information Services Department, Tyler Technologies, and participating attorneys in establishing the e-filing system. The Judicial Branch welcomes the commencement of electronic filing in the Massachusetts state courts, and invites you to begin e-filing at efilema.com.
The Honorable Maura S. Doyle is the elected Clerk of the Supreme Judicial Court for the County of Suffolk, an attorney and a member of the Supreme Judicial Court’s Standing Advisory Committee on Civil and Appellate Rules, Information Technology Steering Committee for the Appellate Courts, and Standing Advisory Committee on Professionalism.
Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth and is an attorney admitted to practice in Massachusetts, Maryland and the District of Columbia.
Joseph Stanton is Clerk of the Massachusetts Appeals Court. He serves on numerous Trial Court and Supreme Judicial Court committees, including as co-chair of the e-filing rules subcommittee.
Kim J. Wright is the Senior Assistant for Judicial Policy in the Executive Office of the Trial Court working closely with the Chief Justice of the Trial Court and the Court Administrator to ensure the integration and coordination of judicial policy planning and initiatives. She is a graduate of Suffolk Law School.
SJC Remakes Search-and-Seizure Law to Keep Pace with Modern Realities of Smartphone Technology and Race RelationsPosted: May 11, 2017
by Ruth O’Meara-Costello and David Rangaviz
In recent decisions, the Supreme Judicial Court (“SJC”) has cast an increasingly skeptical eye on law enforcement activities in two areas of perennial controversy: the search and seizure of cell phones and electronic data, and police encounters with young black men. The SJC’s review of search and seizure matters has been stringent, as the court has demanded a specific evidentiary basis for searches in both the digital and physical realms. These cases implement in practice the principles that absent reasonable suspicion, an individual may voluntarily terminate a police encounter; before obtaining a warrant, the police must have a particularized reason to believe that evidence will be found in a place to be searched (including a specific folder within an electronic device); and officers need individualized suspicion of a suspect’s involvement in a crime before stopping and seizing the individual. In a series of cases, the court has breathed new life into these oft-stated and staid legal rules, particularly in the context of digital searches.
The court has also explicitly addressed the role of race in interactions between the police and the minority residents of the communities they serve. In doing so, the court has recognized the reality in which many black targets of police investigations live. The SJC has forced the criminal justice system – and the overwhelmingly-white players within it – to imagine what it is to be African-American in an over-policed and underrepresented community. By analyzing what probable cause means in the context of digital searches and relying on social science to understand interactions between police and African-American suspects, the court has brought an added degree of rigor in applying Fourth Amendment principles to the realities of modern American life.
First, in Commonwealth v. Dorelas, 473 Mass. 496 (2016), the SJC reviewed whether a warrant to search an iPhone was supported by probable cause. Police had reason to suspect the defendant was involved in a shooting, and that his iPhone might contain incriminating evidence because the victim had been receiving threatening calls and texts. But the warrant did not authorize a search of just call and text history; it allowed officers to search all of the phone’s other contents, including photographs. Executing the warrant, officers found a photo of the defendant holding a gun and wearing clothing similar to that of the alleged shooter. The defendant sought to suppress the photograph, arguing that there was no probable cause to support the search of the photographs (as opposed to call or text history) and that the warrant did not identify the items to be seized or places to be searched with sufficient “particularity.”
The SJC rejected both arguments in a 4-3 decision, but announced a more demanding standard for searches of the digital contents of a smartphone.[i] The majority noted that given the vast “volume, variety, and sensitivity” of information stored in or accessed through a smartphone, permitting a digital search to extend anywhere targeted information could be found is a “limitation without consequence” in the digital world, because “data possibly could be found anywhere within an electronic device.” In light of those “properties that render an iPhone distinct from the closed containers regularly seen in the physical world,” searches of such electronic data require “special care” and must satisfy a “more narrow and demanding standard” than physical searches. But the majority reasoned that the search into the phone’s stored photographs met that standard because threatening photos received or sent via text could have been stored separately from the texts themselves.
The dissent argued that the potential connection to a threat did not justify a search of the phone’s photographs. It emphasized a forensic examiner’s testimony that extraction of call and text history would have retrieved photographs attached to messages, eliminating any need to search all photographs separately stored on the device. The dissent also argued that the warrant failed to satisfy the Fourth Amendment’s “particularity” requirement because it authorized a general search of the entire iPhone. Given the expansive capacity of today’s smartphones, the dissent likened this to “limiting a search to the entire city.” The dissent thus fully rejected the traditional “container” analogy that generally permits a search of any “container” or file that is capable of containing the evidence sought.
Dorelas reflects a closely-divided court struggling over how to translate analog constitutional rules to modern digital reality. Both the majority and dissenting opinions appreciated the need for a heightened standard on cell phone searches, though they took different approaches when considering the obligation to limit the search’s intrusiveness.
A few months later, in Commonwealth v. Broom, 474 Mass. 486 (2016), the SJC provided further guidance on the kind of evidence needed to justify a cell phone search. The defendant in Broom was charged with the first-degree murder and rape of his former neighbor. His statements to police put at issue his whereabouts the night before the murder. A search of “cellular site location information” (CSLI) – location data associated with the defendant’s cell phone – undercut the defendant’s claims about that night. A search of the contents of his cell phone call log and text messages yielded a crude text message from the defendant to his fiancé suggesting that he was sexually frustrated. On appeal, the defendant challenged admission of both the CSLI and the text message.
The court concluded that probable cause did not exist to search the cell phone.[ii] The court emphasized the heightened Dorelas standard, and concluded that the affidavit in support of the search warrant failed to describe “particularized evidence” that the defendant’s phone would contain evidence relating to the crime. The court completely discounted the detective’s statement that, in his training and experience, cell phones “store vast amounts of electronic data” and thus “there is probable cause”, explaining that such a “general, conclusory statement adds nothing to the probable cause calculus.” While the court found the error in Broom to be harmless, its decision put lower courts on notice that they cannot authorize digital searches merely based on an officer’s training and experience without the kind of specific supporting information present in Dorelas.[iii]
In Commonwealth v. White, 475 Mass. 583 (2016), the court made explicit what it had implied in Broom: “Probable cause to search or seize a person’s cellular telephone may not be based solely on an officer’s opinion that the device is likely to contain evidence of the crime under investigation.” The search warrant affidavit’s factual basis for the request to search the cell phone in White amounted to two things: (a) there was evidence that the defendant had participated with others in a robbery-homicide, and (b) the officer’s “training and experience” suggested that cell phones generally contain incriminating evidence of communications in multi-defendant cases. The court found this basis insufficient, emphasizing that the existence of probable cause to arrest does not necessarily provide probable cause to search a suspect’s cell phone; the latter requires particularized evidence that the phone was reasonably likely to contain evidence related to the crime. Absent such particularized evidence, a suspect’s cell phone cannot be searched.
The court has also recently taken on the challenge of applying Fourth Amendment rules to the reality of modern racial dynamics. In Commonwealth v. Warren, 475 Mass. 530 (2016), the unanimous court held that an African-American defendant’s flight from the police does not give rise to probable cause for a subsequent search. The SJC emphasized reasons other than consciousness of guilt that an African-American might flee a police encounter: “Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.” Citing an ACLU of Massachusetts report about the disproportionate impact of police stops on African-Americans, the court held that flight “add[s] nothing to the reasonable suspicion calculus.” (That study, examining the Boston Police Department’s “stop and frisk” activity, concluded that 63% of Boston police-civilian encounters from 2007 to 2010 targeted African-Americans, who are less than 25% of the city’s population. The Department itself acknowledged that “[t]he study did show some racial disparities that must be addressed.”)
The Warren opinion recognizes the importance of perspective in applying legal doctrine. It attempts to defeat stereotypes that only guilty people flee police encounters, and reconciles the justice system with the reality that black men in Boston have an innocent and legitimate reason to flee the police.
The court’s analytical approach is also noteworthy. As the foregoing cases make clear, the court has not hesitated to change the law to keep pace with changes in technology.[iv] Similarly, the SJC’s opinion in Warren suggests its willingness to alter criminal practice and procedure based on emerging social science research. This forward-thinking perspective is unusual – appellate practitioners are trained to rely upon legal sources: statutes, legislative history, constitutional provisions, and precedent. Indeed, the defense attorney litigating Warren never cited the report about racially-biased police stops in his brief to the Appeals Court and SJC – justices of the Appeals Court cited the study in dissent, and the SJC relied on it to effect a sweeping change in doctrine.[v] The court’s recent receptiveness to this type of outside-the-record social science information is worth noting by appellate advocates.[vi]
Finally, in Commonwealth v. Meneus, 476 Mass. 231 (2017), the court held that a search of a group of young black men who happened to be located near a crime scene was unconstitutional. After gunshots struck a woman’s car, she described having seen a group of young black men run away. The SJC held that such a vague description – “a group of young black males” – falls far short of justifying a search of all people fitting that description. In the court’s words: “[T]he mere presence of a nondescript group of young black males standing near the scene of a reported shooting did not, standing alone, sufficiently narrow the range of possible suspects to include this group of individuals.”[vii] As in Warren, the court refused to rely on the defendant’s flight to find reasonable suspicion. Ultimately, despite the seriousness of the crime under investigation, the court’s decision in Meneus was a rebuke to the conduct of the police. In its emphasis on the need for specific evidence to support suspicion and rejection of the importance of proximity to a crime or presence in a high-crime neighborhood, Meneus complements Warren and emphasizes the court’s determination to stringently uphold constitutional protections for minority groups who may be unfairly targeted by law enforcement.
The complex legal issues posed by digital searches, and the reality of racial profiling, will undoubtedly continue to confront the criminal justice system in Massachusetts and elsewhere. With a quartet of new members, and an additional seat to be filled in the near future, it remains to be seen how the SJC’s search and seizure jurisprudence will grapple with these questions going forward.
[i] The Majority opinion was written by Justice Cordy, and joined by Chief Justice Gants and Justices Spina and Botsford; Justice Lenk wrote the dissent, joined by Justices Duffly and Hines. The defendant was represented by an attorney in the CPCS Public Defender Division Appeals Unit. David Rangaviz, co-author of this piece, had no involvement in the case.
[ii] As to the CSLI, the SJC had previously ruled that the Commonwealth may obtain CSLI only pursuant to a warrant. Commonwealth v. Augustine, 467 Mass. 230 (2014). The Broom court held that the Commonwealth should have sought a warrant for the defendant’s CSLI, but that the error did not require reversal. The SJC found no prejudice in the evidence’s admission because (1) the CSLI was only for the day of and day before the murder, and (2) in light of the defendant’s DNA on the victim police had sufficient probable cause to retrieve his CSLI for those two days anyway. The court thus seemed to suggest that there was no prejudice because a warrant would have issued if sought. (The court has, however, previously rejected the notion that “an illegal warrantless search could be cured by proof that a search warrant, if sought, would have been issued and the evidence inevitably discovered.” Commonwealth v. O’Connor, 406 Mass. 112, 115 (1989).)
[iii] The admission of the contents of the defendant’s cell phone was thus error, but the court upheld the conviction based on the strength of other evidence against the defendant, coupled with the fact that only a single text message was erroneously admitted.
[iv] Another recent opinion follows this trend. In Commonwealth v. Martinez, 476 Mass. 410 (2017), the court held that probable cause that the user of a certain IP address possesses child pornography is generally sufficient to justify a search of the residence assigned that IP address. The court nonetheless recognized that its holding may not “always” hold true as future technology “may further erode the connection between an IP address and a physical address” and “analysis hinges on fluid and rapidly changing technologies.” The court has recently heard argument in Commonwealth v. Keown (SJC-10593), in which the defendant argues that a warrant to search his laptop was insufficiently particularized, and therefore is likely to weigh in again on this issue in the near future.
[v] Justices Peter Agnes and Peter Rubin first cited the study in their dissenting Appeals Court opinions. After their views did not carry the day – a three-justice majority of Chief Justice Rapoza and Justices Cypher and Green disagreed – a unanimous SJC embraced the dissenters’ opinion and rationale.
[vi] The SJC’s interest in evidence-based rulemaking is also apparent in recent decisions (all written by Chief Justice Ralph Gants) regarding eyewitness identification. In Commonwealth v. Crayton, 470 Mass. 228 (2014) and Commonwealth v. Collins, 470 Mass. 255 (2014), the court cited social science to limit the admissibility of in-court identifications. In Commonwealth v. Gomes, 470 Mass. 352 (2015), the court changed its model jury instruction regarding eyewitness identification to incorporate updated research, while “acknowledg[ing] the possibility that, as the science evolves, we may need to revise our new model instruction . . .”. Similarly, in Commonwealth v. Silva-Santiago, 453 Mass. 782 (2009), the SJC described a protocol, designed to decrease the risk of misidentification, for police to use before providing an eyewitness with a photographic array of potential suspects. The court recently reaffirmed this protocol’s importance in Commonwealth v. Thomas, 476 Mass. 451 (2017). The court will determine whether to extend Crayton and Collins in Commonwealth v. Dew (SJC-12225), currently pending.
[vii] The court also discounted the relevance of a police claim that the events occurred in a “high-crime area” and reiterated calls for caution regarding that claim in a reasonable suspicion analysis.
David Rangaviz is a staff attorney in the Appeals Unit of the Public Counsel Division of CPCS.
Ruth O’Meara-Costello is a partner at Zalkind Duncan & Bernstein LLP. Her practice focuses on criminal defense and student disciplinary matters
We Are Family: Partanen v. Gallagher Applies Chapter 209C to Protect Children of Never-Married LGBTQ FamiliesPosted: May 11, 2017
by Patience Crozier
Nothing is more important in the life of a child than the security of their parental relationship. The parent-child relationship is foundational and the source of love, emotional and material support. The recent Supreme Judicial Court (SJC) case Partanen v. Gallagher, 475 Mass. 632 (2016), addressed the security of a previously vulnerable class of children – the children of never-married non-biological parents – and clarified that the Massachusetts parentage statutes ensure their equal access to legal parentage.
The facts of the case were representative of those many families in the Commonwealth and beyond. Two women, Karen Partanen and Julie Gallagher, were in a committed relationship. They planned together to have children and, with mutual involvement and consent, Ms. Gallagher conceived via assisted reproduction using donor sperm and gave birth to two children. Ms. Partanen was present at both births, and together the couple cared for the children, made mutual decisions to further their well-being, and held themselves out to family, friends and institutions such as schools and health care providers as a family. The couple did not marry or complete co-parent adoptions. Shortly after they moved back to the Commonwealth from Florida, the couple’s relationship ended. Ms. Partanen filed two actions to secure the children’s rights to continue their relationships with her, one to establish de facto parentage, and later, another to establish full legal parentage under G. L. c. 209C, arguing that Ms. Partanen is a presumed parent under the statute. The trial court dismissed the legal parentage action, holding that Ms. Partanen could not seek parentage under Chapter 209C because of her lack of biological connection to the children. Ms. Partenen appealed and the SJC took the case on direct appellate review.
Section 6(a)(4) of Chapter 209C provides that “a man is presumed to be the father of a child” if “he, jointly with the mother, received the child into their home and openly held out the child as their child.” To establish herself as a presumed parent under that provision, Ms. Partanen first had to allege that the children were born to parents who are not married to each other and, second, that she satisfied the “holding out” provision of the statute, which requires proof that she, jointly with the birth mother, received the children into their home and openly held them out as their own. Ms. Gallagher maintained that Ms. Partanen could not be a presumed parent because she had no biological connection to the children. Ms. Partanen disagreed, arguing that her complaint sufficiently alleged that she was a presumed parent under the statute.
The SJC closely examined the plain language of G.L. c. 209C, § 6(a)(4). The main question was whether Ms. Partanen could establish herself as a presumed parent without any biological relationship to the children. In analyzing § 6(a)(4), the SJC reiterated the familiar rule that statutes must be read in gender-neutral terms. The Court concluded that the statute’s plain language applies to children born to same-sex couples who lack biological ties with their children. Because no statutory language required a biological connection between parent and child, the Court declined to read into the statute such a requirement, particularly when doing so would undermine the statute’s purpose by making this class of children more vulnerable. The SJC further noted that insofar as a father may validly execute a voluntary acknowledgment of parentage absent a biological relationship, same-sex parents must be able to do the same. The Court reasoned that lack of a genetic tie cannot rebut the presumption of parentage when the parentage claim is not based on a genetic tie. Numerous other state courts have interpreted similar statutory provisions to allow the establishment of parentage in similar circumstances, including California, Colorado, New Hampshire and New Mexico.
Turning to the facts of this case, the Court concluded that Ms. Partanen adequately alleged parentage under the statute. The SJC held that she met the two-step test articulated in § 6(a)(4) because she and Ms. Gallagher created a family together with shared involvement, consent and intention, satisfying the requirement that the children were “born to” them. Ms. Partanen also adequately alleged that she “received the child into their home and openly held out the child as their child” in her assertions that they lived as a family, actively cared and made decisions together for the children, and represented themselves to others as their parents.
The implications of Partanen are far-ranging. It is now clear that non-marital same-sex couples can execute voluntary acknowledgments of parentage in the hospital at birth, the key administrative route for establishing a non-marital parent-child relationship and one that saves families the expense and delay of establishing parentage through the court system. Further, these parents can also seek an adjudication of parentage in the courts under G. L. c. 209C, § 6(a)(4), a clear and established means of asserting parentage that is more affordable, accessible and reflective of the family’s reality than de facto parent litigation. Finally, never-married, non-biological parents may now be able to receive counsel and participate in child welfare and juvenile court proceedings regarding their children. A class of parents previously cut out of involvement and decision-making in their children’s lives can now access the full range of protections of legal parentage. Partanen also further highlights the great diversity of families in the Commonwealth, where legal parentage can arise from marriage, adoption, genetic ties and through conduct. Partanen represents a major step forward in ensuring security and equality for all children.
Patience Crozier served on the team of appellate attorneys for Karen Partanen along with co-counsel Mary L. Bonauto, Elizabeth Roberts and Teresa Harkins La Vita. Amici in support of Ms. Partanen’s legal arguments indicate the depth and breadth of support for her position. Amici included the Attorney General of Massachusetts, Greater Boston Legal Services, Children’s Law Center, Massachusetts LGBTQ Bar Association, Women’s Bar Association of Massachusetts, Community Legal Aid, Carolyn Famiglietti, Maureen McBrien, Massachusetts Bar Association, American Academy of Assisted Reproductive Technology Attorneys, Boston IVF, Fenway Health, IVF New England, New England Fertility Society, Path2Parenthood, Resolve: The National Infertility Association, Resolve New England, and Forty-two Law Professors.
by Tejal Mehta
You may have a great boss. You may have a lucrative job. You may work at a law firm or a public agency, with job security and benefits. You may have all of the above. But haven’t you ever wondered how great life would be if you could call your own shots? Your. Own. Firm.
Of course it is daunting. You will ask yourself, “What will be my niche?” “How will I find clients?” “What if my clients become unhappy and sue me?” “Will a home office do?” “Who will buy my paperclips?”
Relax and take a deep breath. Thanks to countless new websites, online products and phone applications, hanging out a shingle is easier, safer, and even more rewarding than was possible even a few years ago. If you are even considering taking the leap, read on.
One lesson learned the hard way by many new solo practitioners is that you don’t want to start off by spending too much money. Because you will be on your own, you will probably have a few lean months in the beginning. Your necessary expenses will include marketing, malpractice insurance, bar dues, a post office box, office supplies, travel and parking. Create a startup business operating budget of $5,000-$10,000 for your first year, and stick to it.
Your Business Plan
You will already have thought about this, in the course of deciding to go solo. But while you are working through your startup list, keep thinking critically about your niche. What do you like to do? What are you good at? And where do you want to practice? If you want to practice criminal defense and be in court regularly, perhaps apply to be a bar advocate. Starting up a civil practice may be a little more challenging, but that is where marketing comes in.
Your Marketing Plan
Network, network, network. A professional support system is crucial. Start by drawing upon the colleagues and connections you already have. Join the local bar association of the geographic area where you plan to practice, and attend events as regularly as you can. Call your colleagues from your prior firm or from law school, and let them know they can send you cases and you will give them a portion as a referral fee. You will start building your practice and your reputation.
As you continue to network, you will likely meet attorneys who are willing to send you their overflow cases. Do not be afraid to ask for this, and for general advice. Before I launched my solo practice, I scheduled a dinner meeting with a solo practitioner colleague who walked me through his startup, informed me how he handled his billing and taxes, and provided me sample fee agreements and boilerplate motions for court.
Join the Massachusetts Bar Association or the Boston Bar Association and attend events or section meetings. The Massachusetts Bar Association has a valuable “Lawyer Referral Service” through which you can receive case referrals for your legal specialty.
Is there a legal topic you know well enough to teach to others? Write a letter to the MCLE programming coordinators and explain that you would like to volunteer your time, by chairing a panel or speaking as a panelist, on that particular topic. This will make you more visible in the legal community.
Websites such as Avvo.com are gaining popularity among attorneys. You can create a basic profile, with your photo, for free. They also have services to make you highly visible online and help you stand out in your desired geographic area and practice niche. This can be more of an investment, so do your research on these sites before diving in. Another widely used networking tool is LinkedIn.com, which allows you to create an online profile for free and connect with lawyers and other professionals who are on this platform.
Do you have a Facebook account? Make your Facebook page your business page! Use your logo and bio, provide details of your expertise, and broadcast your new venture to the network you have already established. It is free advertising, and even if it brings in one new client it will be worthwhile in your first six months. Keep it professional and you can use it along with your business website to reach out to Facebook users. I would suggest using it in addition to, not in lieu of, your business website, as the audience you connect with on Facebook may be different from the audience you would reach through a customary website.
The Nuts and Bolts of Your Actual Startup – In Order
Plan your start date for 30 to 60 days out. Then set the wheels in motion.
Contact information. Set up a free Google voice number or use a similar service, as your work line on your existing phone. Use caution when giving out your personal cell phone number. Clients will call you at all hours of the day and night. Also set up a work email – a professional name on a gmail account will work. Courthouses still send and receive faxes, so it may be worthwhile to set up an efax on your computer at some point.
Firm name. This is a personal choice. You can be creative, or just use your last name, e.g., Smith Law Offices.
Office/Post Office Box. Having a physical office can be expensive and is not really necessary in the beginning. Wait and see what your needs are. You will need a space where you can meet clients, so in the meantime, you can meet them in a courthouse conference space or in public establishments such as coffee houses or the library. To keep your relationships professional, do not meet clients at your home or theirs. Also, you can ask a colleague to lend you a conference room and pay them for that day. Or, you could pay to have use of a virtual office and conference space, on an as-needed basis. You can list it on your business cards and thus have a mailing address at a professional building. If you do not initially rent an office or use a virtual office, you will still need a mailing address. Rent a post office box in a convenient location. The small or medium sized post office boxes offered should suffice, and will cost about $100-$160 annually.
Bank Account. Go to the bank of your choice. Take your checkbook. There will be a minimum balance requirement, likely at least $1,500, to set up the business account. Inform the bank you need a small business checking account and an Iolta account with a low minimum balance and no fees. The bank will need your firm name. If you have not incorporated, then you can call your firm a “dba” (“doing business as”), e.g., John Smith dba Smith Law Offices.
Do you need to incorporate your business? Not immediately. Many attorneys do it, but not all. The key question to answer is, what assets do you want to protect? The purpose of incorporating is to shield your business from liability in the event of a lawsuit. If you have very little to protect, you may not need to incorporate right away. It costs approximately $500 to $1000 to incorporate with the Secretary of State. You can defer that cost at the onset of your new practice. You may also seek to obtain a higher liability insurance policy initially, while deciding whether to incorporate.
Malpractice Insurance. Massachusetts Lawyers Weekly contains liability insurance recommendations. Or, you can ask a colleague for a recommendation. Do not be afraid to shop around. You should purchase a minimum of $100k/$300k coverage. A basic policy should cost approximately $600 for your first year. It will rise after that.
Business cards. Look at colleagues’ cards for ideas. Create a simple design – logo optional – and limit the text. Use an easily legible font. A business card that is handsome and easily readable is an asset – one that is too busy or uses type too small to read is useless. You can find economical printing options at Staples or Costco. You can print 500 cards for as little as $15.
Letterhead. Again, look at your colleagues’ letterhead for ideas. You can easily tailor yours and print it from your own computer.
Website. The vast majority of potential clients look for their attorneys online, or, if they have been referred to an attorney, they Google that attorney to see what they can learn about him or her. Get a professional headshot. Or, take a friend to a law library, stand in front of the reporters, and have the friend take your photo. Then create a website and post your photo on it. A site such as WordPress will construct a basic website for $100. As time goes on, you may want to make it more expansive, with client testimonials, information about cases you have handled, and even a blog. Some of my colleagues use professional website companies that engineer the site to put them at the top of the list in online search engines. I nearly fell over when I found these services cost upwards of $15,000 per year. This type of cost can be deferred until later.
Essential items. You will need a computer, printer, office supplies, and a datebook or online calendar to keep track of appointments and payment dates. You will need access to a scanner and a fax machine, either in your home or at a place such as Staples. You may also wish to purchase a credit card reader from a service such as Lawpay, in the future. Make sure to save all of your receipts for tax time.
The Rest Is History
Starting your own law practice takes guts, and the beginning may be a bit rocky. But if you set up your firm with care, have a vision of your practice, and plug away at networking, you will begin to enjoy success. Before you know it, your name will be out there and new attorneys will be asking you for advice on how to launch. Good luck!
Note: this article reflects the author’s personal opinions and experiences, and is not to be construed as an endorsement of any specific services or companies set forth herein. If you have any specific questions relating to starting your own practice, please feel free to email the author at email@example.com.
Tejal Mehta, a trial attorney, has worked at civil litigation firms and the Middlesex District Attorney’s Office, and now operates a thriving solo practice. She is a former member of the Boston Bar Association.
by William G. Cosmas
Two years ago in this journal, I examined the process of obtaining a pardon in the Commonwealth of Massachusetts from the perspective of having represented one of the first successful petitioners for such relief since 2002. This article examines the Executive Clemency Guidelines issued by Governor Charles D. Baker (the “Baker Guidelines”) as compared to those that his predecessor, Governor Deval L. Patrick, issued in January 2014 (the “Patrick Guidelines”).
In Massachusetts, a governor’s Executive Clemency Guidelines (the “Guidelines”) largely govern the process from petition to clemency. Statutes and regulations set forth the procedure through which the Parole Board, acting as the Advisory Board of Pardons (the “Board”), reviews, evaluates, and considers petitions for clemency. The Guidelines set forth the qualitative framework for that analysis, through an expression of the governor’s philosophy concerning clemency and the criteria that he or she will use to determine whether a petitioner merits recommendation to the Governor’s Council (the “Council”) for relief. On the day after his inauguration, Governor Baker rescinded the Patrick Guidelines, under which Governor Patrick had issued four pardons at the close of his term, halting administrative review of existing petitions until he could draft and issue his own Guidelines. Baker Rescinds Ex-Gov. Patrick’s Clemency Guidelines, Associated Press, Jan. 16, 2015. Governor Baker described his decision as “standard operating procedure,” because with a new governor comes a new understanding of the nature and contours of the governor’s pardon power. See Gov. Baker To Submit New Pardon Guidelines In Coming Weeks, Associated Press, Jan. 23, 2015. The Baker Guidelines were issued in December 2015.
An Apparent Attempt to Streamline
While the Baker Guidelines offer streamlined, procedural clarity and hew closely to relevant law, the Patrick Guidelines contemplated a holistic review of each petitioner, “intend[ing] to inform” the Board—the “public officials who are most able to make informed decisions on the persons seeking relief” —in its preliminary analysis of each petition. See Patrick Guidelines (“PG”) at 1-2. In contrast, the Baker Guidelines emphasize his prerogative to “direct” the Board’s analysis, in language that agrees with the Board’s recently-revised regulations (see, e.g., 120 CMR 900.01(2) (2017) (“The [Board] shall be directed by the Governor’s Executive Clemency Guidelines in its consideration of petitions for executive clemency.”) See Baker Guidelines (“BG”) at 1-2. Such emphasis also reflects the governor’s constitutional power, under Article 73 of the Amendments to the Massachusetts Constitution, to determine which clemency petitions merit submission to the Council for approval. See In re Op. of the Justices, 210 Mass. 609, 611 (1912); see also M.G.L. ch. 127 § 152.
Both sets of Guidelines reserve that power notwithstanding their own terms, but the Baker Guidelines explicitly acknowledge that they do not bind the Council, whose “concurrent action” on a petition is required to issue a pardon. BG at 2; see In re Op. of the Justices, 210 Mass. at 611. This nod to the Council’s constitutional independence, see Pineo v. Exec. Council, 412 Mass. 31, 36-37 (1992), an esoteric point of law easily lost on those without experience on Beacon Hill, may prove crucial to future petitioners who reach the final stage of review. Without this provision, a petitioner (and his/her counsel) might assume that the same Guidelines that governed the lengthy process to that point also set the rules for Council’s essential consideration of a petition. In truth, there are no rules for the Council’s analysis or for any related hearing other than those, if any, promulgated by the Council for the occasion.
Finally, the Baker Guidelines offer added precision by incorporating relevant statutory and regulatory provisions. For example, both Guidelines indicate that, for certain offenses, a pardon “rarely” would include restoration of a petitioner’s firearms rights. Unlike the Patrick Guidelines, however, the Baker Guidelines specifically incorporate the offenses included in M.G.L. ch. 140 § 121’s definition of “violent crime”: “any crime punishable by imprisonment for a term exceeding one year… that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson, or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of injury to another,” BG at 4. Although the Supreme Judicial Court struck down part (iv) of the statute as unconstitutionally vague in May 2016, Commonwealth v. Beal, 474 Mass. 341, 349-51 (2016), the precision that the rest of § 121 provides may help petitioners set more accurate expectations for the process.
An Embrace of Retributive Justice
Both Guidelines establish similar basic threshold considerations for pardon relief, but the Baker Guidelines imbue those considerations with a retributive theory of justice. Perhaps drawing the line for the Commonwealth’s retribution at the petitioner’s release from state supervision, the Patrick Guidelines first considered whether “[t]he grant of a pardon is in the interests of justice,” considering “the nature of the underlying offense(s), the impact of the crime on any victim(s) and society as a whole, the petitioner’s role in the underlying offense, and the fundamental fairness and equity of granting a pardon to the petitioner.” PG at 3. By contrast, the Baker Guidelines identify the “nature and circumstances of the offense” as the first “paramount consideration,” paying particular attention “to the impact on the victim or victims and the impact of the crime on society as a whole.” BG at 3. The greater the severity of the petitioner’s offense, the more time “that should have elapsed in order to minimize any impact clemency may have on respect for the law.” Id. at 2.
The second threshold question under the Patrick Guidelines focused on a petitioner’s rehabilitation, considering whether “the petitioner has been a law-abiding citizen and presents no risk for re-offense,” to determine whether a pardon would be consistent with maintaining public safety. PG at 3. That analysis focused on the petitioner’s “good citizenship” during a period of time following confinement or probation based on whether the petitioner’s offense was a felony or misdemeanor. PG at 3. The Baker Guidelines’ analogous “paramount consideration”—“the character and behavior, particularly post-offense behavior, of the petitioner”—presents a striking shift from the Patrick Guidelines. See BG at 3. A petitioner must have “clearly demonstrated acceptance of responsibility for the offense for which the petitioner is seeking clemency” —and appealing or challenging the underlying conviction or sentence is “[g]enerally… inconsistent with acceptance of responsibility.” Id. In other words, a petitioner who exercised his legal right to appeal or challenge a conviction twenty-five years ago, no matter the justification, unwittingly disadvantaged his future clemency petition to Governor Baker in the process. The Baker Guidelines also essentially require that a petitioner have “made full restitution” to victims economically injured by the petitioner’s crime(s), giving “stronger consideration to petitioners who have made restitution in a prompt manner.” Id. A petitioner’s public service will also lead to “stronger consideration,” whether that public service consists of “substantial assistance to law enforcement in the investigation or prosecution of other more culpable offenders” or “service in the military or other public service, or . . . charitable work.” Id.
Narrowed Opportunity for Petitioners
Both sets of guidelines provide additional factors to be taken into account in determining a petitioner’s entitlement to relief, such as requiring a period of “good citizenship” since release from government supervision, but the Baker Guidelines take a narrower focus, limiting opportunities for petitioners. The Patrick Guidelines considered “either (1) a compelling need for a pardon; or (2) extraordinary contributions to society that would justify restoration of his/her reputation as a concluding step of rehabilitation.” PG at 2. Similarly, the Baker Guidelines require petitioners to “demonstrate both good citizenship and a verified, compelling need,” but do not expressly consider the “extraordinary contributions to society” that might have tipped the balance to clemency under the Patrick Guidelines. BG at 3. Instead, the Baker Guidelines require disclosure and investigation of “whether the petitioner has been the subject of any civil lawsuit, including any restraining order, during the claimed period of good citizenship,” thus imposing a greater burden than the Patrick Guidelines, which required consideration only of restraining orders or civil contempt orders. See BG at 4; PG at 4.
On the whole, the Baker Guidelines provide additional clarity—but commensurately narrower paths to clemency—than those they replaced. It remains to be seen whether and in what circumstances Governor Baker will exercise his constitutional power to grant the “extraordinary remedy” of a pardon—and whether his Guidelines will impact his ability to do so.
William G. Cosmas, Jr., is an associate at Fitch Law Partners LLP, where he works primarily in the areas of business litigation, white-collar criminal defense, government investigations, real estate disputes, and complex civil litigation. In 2014, he represented a successful petitioner for clemency in Massachusetts.
In Fisher v. University of Texas at Austin, 136 S. Ct. 2198 (2016) (“Fisher II”), the Supreme Court upheld the constitutionality of the University of Texas at Austin’s (“UT”) race-conscious admissions program. The 4-3 decision ended Abigail Fisher’s long-running equal protection challenge to UT’s policy. The decision surprised many observers after the Court’s earlier consideration of the case in Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013) (“Fisher I”), in which the Court had seemed to establish a more demanding, and perhaps insurmountable, standard of review.
Fisher II gives new hope to universities seeking to employ race-conscious admissions policies to promote diversity. The decision reaffirms the framework of Grutter v. Bollinger, 539 U.S. 306 (2003), without restating Grutter’s prediction that affirmative action would no longer be necessary in 25 years. Fisher II declares that universities are owed “considerable deference” in articulating diversity goals and, by accepting UT’s showing on race-neutral alternatives, suggests more leeway for universities to develop narrowly-tailored policies geared to their specific circumstances.
In 2003, the Supreme Court in Grutter applied “strict scrutiny” analysis to a race-conscious admissions policy, holding that diversity is a compelling governmental interest that can justify the narrowly-tailored use of race in public university admissions. 539 U.S. at 326-27. Grutter upheld an admissions policy that sought to admit a “critical mass” of minority students by considering race as one factor among many in a holistic, individualized process, when doing so was necessary to achieve the educational benefits of a diverse student body.
Fisher first challenged UT’s policy after being denied admission in 2008. Under UT’s policy, most freshmen are admitted using a percentage plan that guarantees admission to Texas high school students in approximately the top 10 percent of their class. The remaining freshmen are admitted through a holistic review process that combines each applicant’s SAT score and grades with her “Personal Achievement Index” comprising numerous other factors including race. UT’s policy was designed to comply with Grutter.
Fisher did not qualify under the percentage plan and challenged only the policy’s holistic review component, arguing that it overstepped Grutter or, alternatively, that Grutter should be overruled. The district court granted summary judgment in favor of UT, and the Fifth Circuit affirmed. In Fisher I, the Supreme Court reversed in favor of Fisher, holding that the Fifth Circuit had applied an incorrect legal standard by giving too much deference to UT in considering the narrow-tailoring requirement. Fisher I, 133 S. Ct. at 2420-21. The Court remanded to the Fifth Circuit to engage in a new, and apparently more rigorous, examination of UT’s admissions criteria to see whether it was consistent with Grutter, stating that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” Id. at 2420 (emphasis added).
On remand, the Fifth Circuit upheld the policy, Fisher appealed again, and the Supreme Court granted certiorari.
The Fisher II Opinion
In Fisher II, the majority opinion articulated three controlling principles. 136 S. Ct. at 2207-08. First, the use of race must withstand strict scrutiny. Second, if the university chooses to “pursue the educational benefits of student body diversity,” and articulates “a reasoned, principled explanation” for that choice, its conclusion that diversity serves its educational goals is entitled to judicial deference. Third, the university nonetheless bears the burden of proving that “race-neutral alternatives that are both available and workable do not suffice,” a determination to which “no deference is owed.”
The Court concluded, among other things, that the record established that UT “articulated concrete and precise goals” that mirrored the compelling interest in diversity that the Court had previously approved in Grutter. Id. at 2211. The Court concluded that “a reasonable determination was made that the University had not yet attained its [diversity] goals.” Id. at 2212.
Notably, although the record in the case was extensive, the decision did not declare that any particular type of evidence was necessary to demonstrate narrow tailoring.
The Court rejected Fisher’s emphasis on the purportedly race-neutral percentage plan, explaining that percentage plans, “though facially neutral,” “are adopted with racially segregated neighborhoods and schools front and center stage.” Id. at 2213. The Court then stated that “to compel universities to admit students based on class rank alone is in deep tension with the goal of educational diversity as this Court’s cases have defined it.” Id. at 2213-14.
Justice Alito dissented, criticizing the Court’s deference to UT without requiring UT to articulate specific objectives, such as numerical metrics for critical mass. Id. at 2215-43. This, he argued, made the narrow-tailoring inquiry “impossible.” Id. at 2222.
The Court’s opinion includes several caveats, including the explicit statement that UT’s program is sui generis. Id. at 2208. This language may limit the opinion’s value for prospective guidance.
Nonetheless, Fisher II appears to soften Fisher I’s standard for race-conscious admissions policies. The decision importantly concedes that universities—rather than the courts—are best positioned to assess the benefits of diversity on their campuses and how to achieve those goals. The opinion thereby eschews the Fifth Circuit’s focus on critical mass and how specifically UT had to define metrics for critical mass.
Fisher II confirms Grutter’s holding that a university’s pursuit of diversity can constitute a compelling government interest. Consistent with Grutter, a university must carefully evaluate how the benefits of diversity relate to its specific mission and circumstances. A university must show that any available and workable race-neutral alternatives are “insufficient” to meet diversity goals and, if it adopts a race-conscious policy, must utilize an individualized, holistic review such as that of UT, where race is but a “factor of a factor of a factor.” Id. at 2207.
Giving Universities Deference
In perhaps the most significant sentence for universities crafting admissions policies, the majority opinion states, “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Id. at 2214. The opinion thus recognizes that more than one policy might survive under this standard and that universities, like states, “can serve as ‘laboratories for experimentation.’” Id. Fisher II’s reasoning implies that universities have some flexibility in the narrow-tailoring analysis to adopt policies tailored to their specific goals.
Dean Richlin is a partner in the Litigation and Administrative Departments at Foley Hoag LLP. Sarah Burg is a litigator in the firm’s Intellectual Property Department.
Voice of the Judiciary
Before I was appointed a judge, if someone had asked me to list the most interesting things that a trial judge does, I doubt that I would have included chatting with jurors after they have rendered their verdict. However, over the last seven years I have found those post-verdict conversations to be enlightening, reaffirming, and frequently entertaining.
In each county, Superior Court judges are assigned on a rotating basis, each week, to welcome the day’s pool of prospective jurors, as required by law. See G.L. c. 234A, § 65. Depending on the county in which you are sitting, your turn comes up every couple months. Judges take different approaches in their greetings. Part of my approach is try to convince my audience, some of whom are usually skeptical, that most people find jury service an interesting and rewarding experience. I go on to say that when we (judges) speak to jurors who have been seated on juries after they have returned their verdicts, we find that sometimes they have made new friends, they have learned something more about our criminal or civil justice system, and they always feel that they have made an important contribution to their community. I say this to encourage our potential jurors to serve, and also because I believe it is true.
While I have had the good fortune to speak to a great many juries over the past seven years, these are just personal observations and, therefore, only anecdotal. After I receive a verdict (or declare a mistrial) and formally thank the jurors for their service, I always tell the jurors in open court that I would like to thank them in a less formal setting in the jury room. I make it clear that this isn’t an order and they are free to go, but if they have time I hope they will stay a few moments. I don’t think that any juror has ever left before my court officer escorted me to the jury room. While some juries are polite, but clearly anxious to disperse and go on about their business, the majority of juries have questions they want to ask, suggestions they want to offer, or generally want to chat about their experience. I think that juries that have “bonded” during their service are more likely to linger.
After explaining that I do not want to know anything about what jurors said to one another or the course of their deliberations, which I hope they will hold confidential (although having returned their verdict they are freed from any legal obligations not to speak to others), I ask if any juror has any question, comment or observations. Sometimes that prompts a number of jurors to speak up and sometimes I have to prod with a few questions of my own before a conversation ensues. Here are some general observations.
Jurors take their responsibilities very seriously–they truly understand that they have been the judges of the facts of the case. Obviously, the subject matter of cases varies. Some cases are clearly more difficult to decide; some are more emotional; and in some the consequences of the verdict are clearly enormous. Frequently, jurors are physically exhausted at the end of their deliberations. It is not uncommon to find jurors in tears or fighting them back. I suspect sometimes that may be because a juror has been convinced to change his or her view of the evidence or a fact. Sometimes, it is because they have had to make an emotionally difficult decision.
I believe that jurors take very seriously their oath to apply my instructions to the facts as they find them. Personally, I don’t think that I have ever witnessed jury nullification. To the contrary, I have had jurors in tears in a personal injury case because they had found for the defendant, even though the plaintiff was very sympathetic or had suffered a debilitating injury. They had concluded that the defendant just was not negligent. On a number of occasions in criminal cases, it has been clear that the jurors thought that the defendant was probably guilty of the crime, but the prosecution had not proven guilt beyond a reasonable doubt. Conversely, jurors have found defendants guilty, but expressed concern over the potential length of the sentence.
Frequently, jurors ask me if there was any additional evidence that had been excluded from trial. More often this comes up in criminal cases, but sometimes in civil cases as well. I don’t have the sense that the jurors are angry that evidence was not presented, they just wish that they had more material on which to base their decisions. I think that collectively juries are very good at figuring out where the missing pieces are in the chain of evidence or events.
A recurring comment is that jurors do not want the lawyers to repeat the same point, over and over. Innumerable times juries have told me that they got it the first time, certainly the second time, and by the fifth time they really didn’t want to hear about it again. Indeed, some juries find the repetition condescending not convincing. Often juries will point out that the trial bogged down over “stuff” that was not relevant to their decision making. It was as if the lawyer was afraid to leave something out. I think that jurors appreciate charts and graphs that make data understandable, although they will do their best to sort through materials themselves if they have to. In one case in which critical evidence was on a surveillance video, a technologically savvy juror displayed the video frame by frame during deliberations. Juries tell me that they try to get past which lawyer they liked the best, but obviously they appreciate lawyers who make their job easier.
I think that even in an informal setting there is a tendency for jurors to tell judges what they think the judge would like to hear. Nonetheless, when I ask, jurors overwhelming tell me that their jury service has been a rewarding experience and they would like to do it again—but not too soon (especially when the trial takes more than a week).
I truly believe that if lawyers, or the public, were flies on the wall when judges chatted with jurors after a trial, it would make them believe what I believe, that while jury trials may not be the perfect way to resolve disputed issues of fact, they are the best way so far devised.
Mitchell Kaplan is a justice of the Superior Court and currently sits on the Business Litigation Session of the court. He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.
Last February, the Massachusetts Alcoholic Beverages Control Commission (ABCC) presented an Everett-based beer distributor, Craft Brewers Guild, with a draconian choice: either face a lethal 90-day suspension of licensed activities, or pay an unprecedented $2.6 million fine, equal to half of projected profits for the time of suspension. This “choice” stemmed from admitted-to violations of laws forbidding bribery and price discrimination. In its Chapter 30A suit appealing the fine, however, the Craft Brewers Guild principally claims that (like its competitors) it simply did what was necessary—that “pay to play” is the industry norm, practiced by all or most, necessary for survival. And when viewed in context, this perhaps unusual defense forces the observer to take a second glance at how we regulate the industry and ask again: is this the best way?
First some background. The volcanic growth in the number of U.S. breweries is no secret. In 1978, American beer drinkers were served by an estimated 89 breweries, a post-Prohibition nadir. In line with the oft-dubbed “craft beer revolution,” last year saw an 18% increase over 2014’s record numbers, with the total number of breweries chiming in at 4225. Regardless of whatever paradox lies with choice, the market has permanently and fundamentally changed. And one consequence is simply space: no matter a bartender’s ingenuity, there are only so many actual tap lines in bars available to pour such unprecedented variety and creativity. Resultant competition for those lines is predictably fierce and growing fiercer.
Despite this altered market, these competing actors play on an old stage: an entrenched tapestry of regulation governs the alcohol market. In Massachusetts (like most states), the alcohol industry is artificially divided into three parts. Generally, (i) licensed manufacturers of alcoholic beverages (like a brewery) sell their goods to (ii) licensed distributors (like Craft Brewers Guild), who in turn sell to (iii) licensed retailers, such as a bar or liquor store—which then may serve the consumer. Vertical integration or substantial ownership between these three “tiers” is highly restricted; for the most part, they must operate independently. Notwithstanding its many critics, this tripartite demarcation at least intends to prevent organized and monopolistic crime, increase orderliness in what was once a disorderly market, and artificially inflate prices to bolster temperance.
Further, the Commonwealth extensively regulates the means and methods of business across the borders it erected. For example, if a brewer (one tier) wishes to stop selling beer to a particular distributor (another tier), it may not simply re-negotiate the contract. It must show cause to the satisfaction of the ABCC before doing so.
At issue in the Craft Brewers Guild story, however, is the regulatory decision to restrain the methods these tiers may use to compete.
The statute and regulation at play are G.L. ch. 138, §25A and 204 CMR 2.08. Section 25A forbids brewers and distributors from offering the same product to different purchasers on different terms. What is offered to one—be it price, credit or favor—must be offered to all. In turn, 2.08 forbids paying purchasers to carry a particular brand of alcohol. (For good measure, the federal Alcohol and Tobacco Tax and Trade Bureau forbids the same). Together, these rules intend to eliminate discrimination and prevent monopolization by a single major brand, in theory conserving fertile soil for up-starts and innovators while stifling disorderly conduct throughout the industry.
So on one hand, there’s unprecedented competition among a rapidly growing number of brands seeking increasingly scarce tap lines. On the other, a regulatory framework—codified in a different era—that artificially partitions alcohol distribution among three distinct entities and then attempts to prevent those entities from purchasing an advantage from one another. More players, scarcer resources, and tight restraints: this is context in which the ABCC’s fine of Craft Brewers Guild (and pending investigation into five bars) must be considered.
With that context in mind, this is what happened. Craft Brewers Guild, as part of a “pay to play” scheme, kicked back varying levels of cash and other favors to bars for putting its beers on tap (and thereby taking another distributor’s beer off). Although no brewers were cited in the decision, the ABCC speculated that Craft Brewers Guild would then accept (or demand) reimbursements from the benefited breweries. The legal issue is therefore clear: not all bars received the same kickbacks, and some received none at all, violating Section 25A’s prohibition on price discrimination; and tap space was purchased at the expense of other beer, violating 2.08’s prohibition on bribery. Media coverage reveals that the practice may be (perhaps necessarily) very common. But it was Craft Brewers Guild that was hit with the fine. And that sparks some thoughts.
First, there’sirony in a distributor of mostly craft beers running afoul a law meant in part to protect craft beers from larger market forces. And the irony is compounded by the fact the entire ABCC investigation grew from a seed planted by a series of angry tweets from the owner of the now-closed craft brewery Pretty Things, whose beers were carried by Craft Brewers Guild (but who presumably was not benefitting from the practice). At first blush his anger makes sense—the law should be followed, there’s a large variance in economic power even within the “craft” sector of the beer market, and consumer choice could still be largely inhibited by prices offered (or demanded) for tap lines that burden already-thin profit margins of emerging breweries. Yet, the fact that a craft brewer triggered an investigation into its own craft distributor indicates that a law meant in part to protect small companies from allegedly law-breaking “big guys” may in actuality be causing unintended consequences. One wonders whether emerging entities are most in need of market freedom to purchase space in a crowded field. Further, roles have been reversed: entities that typically resist what they consider byzantine restrictions are now essentially calling for stricter government enforcement. All of which is to say that it’s complicated: a simple pro/anti-regulation dichotomy is, as always, insufficient.
But fundamentally, when presented with a complicated background and a choice between a less-fettered market (with its risks) and rather ironic, sporadic and ineffectual enforcement of old laws with antiquated origins (by an agency that has regulated hesitantly in the past), one is hard-pressed to gleefully embrace the latter. The Suffolk Superior Court’s Chapter 30A review of the ABCC decision will, therefore, make for interesting reading. Arbitrary and capricious? Perhaps.
Eric Hawkins is an associate who works on a diverse range of matters within WilmerHale’s Litigation/Controversy Department. Prior to joining WilmerHale, Mr. Hawkins worked in the Administrative Law division of the Massachusetts Attorney General’s Office, where he researched, drafted and argued motions on behalf of various Massachusetts agencies facing administrative appeals and constitutional challenges. Throughout law school, Mr. Hawkins worked part time as a Brewery Ambassador for the Samuel Adams brewery in Boston.
Voice of the Judiciary
Trial lawyers and I have not always seen eye-to-eye on the purposes or methods of juror voir dire. As a trial judge, I view the overarching objective of juror voir dire as the selection of an impartial jury, with a corollary need to make sure peremptory challenges are exercised constitutionally. Many trial attorneys admit freely that they are interested in as partial a jury as possible, with the subsidiary goal of learning as much as possible about the selected jurors so that they might later tailor arguments and present their case more persuasively.
With the advent last year of attorney-conducted voir dire in Massachusetts, we now have an array of mechanisms for conducting voir dire of prospective jurors: (1) traditional, judge-controlled questioning of prospective jurors; (2) attorney-conducted voir of individual jurors (each examined one at a time by the attorney or self-represented party at sidebar or in the absence of the rest of the venire); or (3) panel voir dire (the questioning by counsel or pro se litigant of jurors as a group). There has been much recent discussion within the Superior Court and the bar about which of these methods, alone or in combination, is more effective generally or in a particular case.
I am here to say that, whatever your goals in selecting a jury and whatever mechanism you select, if you want “to learn whether [a juror] . . . has . . . formed an opinion . . . or is sensible of any bias or prejudice,” G. L. c. 234, § 28, it is the phrasing of the voir dire questions themselves that matters most. The simple truth is that questions do more than solicit information; “[q]uestions put words in answerers’ mouths.” Kellerman, Kathy, “Persuasive Question-Asking: How Question Wording Influences Answers” (2007). The slightest differences in a question’s form, phrasing, terminology, and presumptions can alter the answer the prospective juror gives. Id. If a universal aim of jury selection is to elicit truly honest answers from prospective jurors, then we trial judges and lawyers alike should be mindful of and seek out training on the type of questions that could best accomplish this shared goal.
Questions shape answers in many ways. A “suggestive question,” for example, is one that implies that a certain answer should be given in response, Copeland, James M., “Cross Examination in Extemp,” National Forensic League (2010), or includes an assumption as accepted fact, Loftus, Elizabeth F., “Eyewitness Testimony,” Harvard University Press, Cambridge, MA (1996). Asking, “Don’t you think this was wrong?,” subtly influences the respondent into answering in the affirmative, whereas a one-word variant of that question, “Do you think this was wrong?,” does not. “Repeated questions” may make interviewees think that their first answer was wrong, leading them to change their answer. See Lyon, Thomas D., “Questioning Children: The Effects of Suggestive and Repeated Questioning,” Electronic Publishing, Inc. (1999). A “forced-choice question,” e.g., “Is this yellow or green?,” forces people to choose between two options when neither choice may be true or might need more explanation. See Peterson, Carole, & Grant, Melody, “Forced Choice: Are Forensic Interviewers Asking the Right Questions?,” Canadian Journal of Behavioural Science (2001).
“Confirmatory questioning” during voir dire can be particularly risky. Confirmatory questions are those posed to support a preexisting perception. For example, if a questioner assumes a hypothesis about a respondent, such as being extroverted, he/she may slant the questions to confirm that hypothesis, e.g., “What would you do if you wanted to liven up a party?” or, “In what situations are you most talkative?” Snyder, M., & Swann, W. B., “Hypothesis Testing Processes in Social Interaction,” Journal of Personality and Social Psychology (1978). Conversely, if the interviewer wanted to make the interviewee look introverted, he/she would ask questions like, “Have you ever been left out of a social group?” or, “In what situations do you wish you could be more outgoing?” Id. In both instances, the questioner simply finds what he/she expects to find. Such an intentional or unintentional strategy can produce non-representative answers that are shaped by the questions asked. See Swann, W. B., Guiliano, T., & Wegner, D. M., “Where Leading Questions Can Lead: The Power of Conjecture in Social Interaction,” Journal of Personality and Social Psychology (1982).
Moreover, many people have a tendency to say what they believe is acceptable or appropriate. This is the so-called “social desirability bias.” Fisher, R. J., “Social Desirability Bias and the Validity of Indirect Questioning,” Journal of Consumer Research: 20, 303-315 (1993). Whether questioning jurors individually or in a group, there is a great danger that venirepersons will tell the judge, attorney, or litigant what he/she wants to hear. In addition, prospective jurors who experience difficulty discerning “desired” answers may choose not to answer at all. Marshall, L. L., & Smith, A., “The Effects of Demand Characteristics, Evaluation Anxiety, and Expectancy on Juror Honesty During Voir Dire,” The Journal of Psychology (1986).
Several states, including Texas, North Carolina, and Maryland, have adopted rules prohibiting improper “commitment” (or “stake-out” or “precommitment”) questions in juror voir dire, see, e.g., Standefer v. State, 59 S.W.3d 177, 183 (Tex. Crim. App. 2001); Hyundai Motor Company v. Vasquez, 189 S.W.3d 743, 756 (Tex. 2006); State v. Parks, 324 N. C. 420, 423 (1989); Stewart v. State, 399 Md. 146, 162 (2007); some other federal and state jurisdictions have addressed the issue in the context of “death-qualifying” juror voir dire in capital cases, see Morgan v. Illinois, 504 U.S. 719, 735-736 (1992); U.S. v. Tsarnaev, U.S. District Court No. 13-CR-10200-GAO (Dist. Mass. 2014). A commitment question is one that “commit[s] a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.” Standefer, 59 S.W.3d at 179. “[A]n improper commitment question seeks to create a bias or prejudice in the panelists before they have heard the evidence.” Rodriguez-Flores v. State, 351 S.W.3d 612, 621 (Tex. App. 2012). An example of an improper commitment question (asked by the prosecutor in a drug case) would be the following: “If the evidence, in a hypothetical case, showed that a person was arrested and he/she had in his/her pocket a crack pipe with residue in it, is there anyone who could not convict a person based on that?” Standefer, 59 S.W.3d at 179. This question asks the jurors whether they would resolve a person’s guilt based on his/her possession of a residue amount of cocaine in a crack pipe. Id. By contrast, the question, “If the alleged victim is a nun, could you be fair and impartial?,” is not an improper commitment question because it does not ask the panelist to resolve any issue in the case based on the fact that the victim is a nun, only to commit to what the law requires, i.e., being fair and impartial. Id. at 180, 181.
Not all case-specific questions are inappropriate, of course. “[T]he proper tests for whether a question is a ‘stake-out’ question are the following: (1) Does the question ask a juror to speculate or precommit to how that juror might vote based on any particular facts? or (2) Does it seek to discover in advance what a prospective juror’s decision will be under a certain state of the evidence? or (3) Does it seek to cause prospective jurors to pledge themselves to a future course of action and indoctrinate them regarding potential issues before the evidence has been presented and they have been instructed on the law?” U. S. v. Johnson, 366 F. Supp.2d 822, 845 (N.D. Iowa 2005). The line between a proper and an improper commitment question is not always a bright one.
This discussion of framing voir dire questions only scratches the surface. I am concerned that trial judges and attorneys are not well informed about or skilled at asking questions during juror voir dire. I strongly urge the courts and the bar to develop training programs on the topic of questioning prospective jurors. By learning to keep our words out of the jurors’ mouths, we can achieve a more effective, trustworthy way of choosing a jury.
Judge Linda Giles has served as an Associate Justice of the Superior Court since 1998. She is an adjunct professor of law at Suffolk University Law School and a member of the Board of Editors of the Boston Bar Journal. Judge Giles is a graduate of McGill University and New England School of Law.
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.