Unlike Federal Rules, The Recent Amendment To Rule 26 Of The Massachusetts Rules Of Civil Procedure Addresses Protective Orders Only
by Nathalie K. Salomon
The Supreme Judicial Court (“SJC”) approved amendments to Mass. R. Civ. P. 26, effective July 1, 2016, but unlike the recent and substantial amendments to Fed. R. Civ. P. 26, the SJC’s amendments are confined to section 26(c), concerning protective orders. Although the SJC’s Standing Advisory Committee on the Massachusetts Rules of Civil and Appellate Procedure (the “Committee”) considered proposals based on recent amendments to the Federal Rules, which focused on limiting the burdens of discovery (https://bostonbarjournal.com/2016/04/13/proportionality-emphasized-in-amendments-to-the-federal-rules-of-civil-procedure/). The Committee ultimately did not recommend them. Instead, the Committee adopted a “wait and see” approach, and as a compromise, the Committee recommended, and the SJC adopted, the new language in Rule 26(c) which instructs a court to consider factors relating to the proportionality of discovery when determining whether to issue a protective order under Rule 26.
The New Massachusetts Rule 26(c)
Before the July 1, 2016 amendment, Rule 26(c) was largely a copy of its federal counterpart. The SJC has now added a new paragraph, not present in the federal rule, at the end of the first paragraph of Rule 26(c), identifying three factors that may be considered in determining whether a protective order limiting discovery is warranted “due to undue burden or expenses.” These factors are:
(1) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;
(2) whether discovery sought is unreasonable, cumulative or duplicative; and
(3) whether the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’ relative access to the information, the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.
Rule 26(c) still states that the court has power to issue a protective order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” and the rule also still lists the kinds of orders that the court is authorized to issue (e.g., “that the discovery not be had,” or that it may occur “only on specified terms or conditions”) – but now the Rule sets forth substantive guidance to the courts and the parties concerning the appropriate circumstances for such orders.
The Reporter’s Note observed that the amendment “should not result in a significant change to Massachusetts practice because similar factors already exist to limit discovery of electronically stored information under Rule 26(f)(4)(E),” with the exception of one factor that is omitted from the amendment of 26(c), namely “whether the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought.” The Reporter’s Notes conclude that the addition of these factors to Rule 26(c) merely “confirms the existing authority of a trial judge in determining whether to grant a protective order.”
The Committee Considered, but Did Not Recommend, Changes to Mass. R. Civ. P. 26 that Would More Closely Track Its Federal Equivalent.
The limited scope of the Massachusetts 2016 amendment to Rule 26 is the result of a “compromise” between the Committee’s recommendation not to change the Massachusetts discovery rules at this juncture and commentators advocating for the adoption of the extensive changes recently made to Rule 26 of the Federal Rules of Civil Procedure.
The Committee considered, but ultimately rejected, three proposed changes to discovery rules based on the 2000 and 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure. Each of those revisions would have impacted Rule 26(b), which is titled “Scope of Discovery.” As observed by the Reporter’s Note on the amendment, the intent of these proposed changes was “to address the burdens of discovery that have been the subject of significant debate across the country over the past few years.”
The first proposed change, drawn from the 2000 federal amendments, would have refined the scope of discovery under Rule 26(b) by removing language that discovery must be “relevant to the subject matter” and replacing it with language that discovery must be “relevant to the party’s claim or defense.”
The second proposed change to Rule 26(b), taken from the 2015 federal amendments, would have adopted the principle of proportionality by listing factors to consider in deciding whether a discovery request is “proportional to the needs of the case,” such as “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
The third proposed change, drawn from the 2015 federal amendments, would have deleted language in Rule 26(b)(1) that information must be “reasonably calculated to lead to discovery of admissible evidence,” a confusing phrase which, as the Committee Note to the Federal Amendment explains, “has been used by some, incorrectly, to define the scope of discovery.”
Upon review of public comments, however, and to the dismay of some practitioners as shown in the Massachusetts Lawyers Weekly’s June 20, 2016 story titled “Unfortunate delay in amending state discovery rules,” the Standing Advisory Committee ultimately recommended not to adopt the three proposed changes to Rule 26(b). Some comments took the position that the changes are not needed. As suggested in the Reporter’s Note, the Committee was particularly receptive to the concern that the consequences of imposing the federal changes to Massachusetts courts are unknown (“The principal objection to the amendments by the Standing Advisory Committee was based on the perception by many Committee members of drawbacks and unintended consequences of imposing the federal changes on the Massachusetts trial courts, as well as the newness of the federal changes”). Consequently, the Committee favored a “wait and see” approach, advising the SJC not to revise the discovery rules at this time. As a “compromise,” the Standing Advisory Committee prepared draft language for the SJC’s consideration alluding to the principle of proportionality but limited to the narrow issue of granting protective orders in discovery disputes under Rule 26(c). The SJC approved the draft amending Rule 26(c) as described above and left untouched the remaining portions of the discovery rules.
For a further discussion of the amendment to Rule 26(c), readers are directed to the Reporter’s Note (http://www.mass.gov/courts/docs/sjc/rule-changes/rule-change-rule-26-mass-rules-civil-procedure-reporters-notes-may-2016.pdf).
Nathalie K. Salomon is a litigation associate at Fitch Law Partners LLP, where she focuses her practice on general commercial litigation, with particular emphasis on the defense of banks and other financial institutions in tort and contract matters, business litigation and real estate litigation.
Earlier this year, the Supreme Judicial Court amended Rule 45 of the Massachusetts Rules of Civil Procedure, which concerns subpoenas. The main purpose of the amendments is to give Massachusetts practitioners the ability to issue “documents only” subpoenas to non-parties. Now, attorneys need no longer notice depositions of non-parties when the only goal is to obtain production of documents.
The amendments were effective as of April 1, 2015. Before that date, attorneys in Massachusetts followed a convoluted procedure: a notice of deposition and a subpoena duces tecum were served on a non-party, commanding that non-party to appear at a Keeper of the Records deposition with the specified documents. The non-party would instead send the documents outlined in the subpoena duces tecum (with a sworn certification) to the issuing attorney, who would then waive the non-party’s appearance at the deposition. The issuing attorney would then have the documents and the non-party would never appear at a deposition.
To streamline the process, the Supreme Judicial Court amended Mass. R. Civ. P. 45 to track the language of and the procedure described in the Federal Rules of Civil Procedure. The amendment eliminates the superfluous steps described in the previous paragraph by creating a new class of subpoenas. Now, the attorney may serve a “documents only” subpoena, and the person receiving it “need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.” The subpoenaed party can simply send the documents to the issuing attorney.
Where the previous incarnation of Mass. R. Civ. P. 45(a) provided generally that a subpoena shall “command each person to whom it is directed to attend and give testimony at a time and place therein specified,” the amended rule provides greater detail, stating that a subpoena shall “command each person to whom it is directed to do the following at a specified time and place: to attend and give testimony; to produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or to permit inspection of premises.” By listing the several purposes for which a subpoena may be issued, the amendment has created new categories of subpoenas that can be targeted for a more economical civil practice.
The new procedure for issuing “documents only” subpoenas in the amended Mass. R. Civ. P. 45(b) further provides that commands to produce documents or electronically stored information may be set out in subpoenas separate from those that command attendance, and that the subpoena “may specify the form or forms in which electronically stored information is produced.” Practitioners will be able to use this provision to require that the document production be made in a specified format, so that they are able to compile and review documents more effectively.
The amended rule also provides certain protections for non-parties. The reporter’s notes recognize that the person receiving a subpoena may have “no stake in the case” and may not have the assistance of counsel. Thus, a party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” A non-party on whom a subpoena is issued has 10 days from the date of service to object to the subpoena and must serve the objection on all parties. After an objection has been made, the burden shifts to the issuing party, who must then justify the need for the documents via a motion to compel. In practice, Massachusetts courts have generally been protective of non-parties in the discovery context, and these protections will likely be reinforced by the amended rule.
At the same time, the amended Mass R. Civ. P. 45(c) specifies that the requirement to tender fees to a person served with a subpoena does not apply to cases where the person is not commanded to appear – meaning that while a non-party may have an easier time complying with a subpoena, he or she may not receive a fee, however nominal, for doing so.
Although the amendments to Mass R. Civ. P. 45 align the Massachusetts rule more closely to the federal rule, important differences remain. Mass R. Civ. P. 45(d)(1) provides that prior to the service of a “documents only” subpoena on a third person, a copy of the subpoena must be served on all parties to the case. This differs from the federal rule, which requires that both notice and a copy of the subpoena be served on all parties to the case. The Massachusetts rule eliminates an unnecessary step, allowing a copy of the subpoena to operate as adequate notice that a subpoena has been served. Unlike the federal rule, this provision in the Massachusetts rule also tasks the issuing party with serving copies of any objection to the subpoena on all parties. In addition, the issuing party must serve all other parties with either notice that a production was made or an actual copy of the documents produced.
These amendments should help make civil procedure more efficient. By eliminating the need to notice a deposition and issue a subpoena to non-parties from whom only documents are needed, less paperwork will be required from issuing parties. The streamlined procedure will save practitioners time, and clients, money. The amendment to Mass R. Civ. P. 45 should be well received by Massachusetts attorneys.
Carlos A. Maycotte is an associate at Sally & Fitch LLP, where he works primarily in the areas of family law, international arbitration and litigation, and general civil litigation.
by Stephany Collamore
Litigants in state court cases have been obtaining discovery of Electronically Stored Information, or “ESI,” for quite some time. The broad scope of discovery permitted by Mass.R.Civ.P. 26(b)(1), the expansive definition of “documents” found in the previous version of Mass.R.Civ.P 34(a), and the reference to “electronic storage locations” in Superior Court Standing Order 1-09(c)(3) all suggest that ESI should be discoverable. Until the enactment of certain amendments to the Mass. Rules of Civil Procedure (“Rules”) that took effect on January 1st of this year, however, litigants and the courts had little guidance as to how to proceed with this important form of discovery. Rules 16, 26, 34, 37 and 45, as amended, now provide some much-needed regulation. This article addresses some of the key provisions.
Form of Production
Rule 34 has been amended to include a specific reference to ESI and to provide the requesting party the opportunity to specify the form in which it would like ESI to be produced. Mass.R.Civ.P. 34(b)(1). For example, a party may request that e-mails be produced in searchable native format rather than in less readily searchable PDF format or in paper. A party may also request production in the particular electronic form that works best with the computers of the requesting party or its ESI vendor. At the same time, amended Rule 34 allows the responding party to object to a requested form of ESI production. Mass.R.Civ.P. 34(b)(2)(B). This should help identify areas of disagreement before the production is actually made.
A party has a right to demand an ESI conference with the opposing party so long as the demanding party serves a written request for such a conference within 90 days after service of the first responsive pleading. Mass.R.Civ.P. 26(f)(2)(A). Per Rule 26(f)(2)(C), the topics to be addressed at an ESI conference include:
- any issues relating to preservation of discoverable information;
- the form in which each type of information will be produced;
- what metadata, if any, should be produced;
- the time within which the information will be produced;
- the methods for asserting or preserving (a) claims of privilege and/or work product protection and (b) the confidential and/or proprietary status of information;
- whether allocation among the parties of the expense of production is appropriate; and
- any other issue related to the discovery of ESI.
Once a request is served, the conference should be held as soon as possible, but no later than 30 days after the request is made. Id. This means that a party may be required to participate in an ESI conference within a month of the filing of a responsive pleading, making it imperative for attorneys to become knowledgeable about their clients’ ESI as soon as possible.
Even when a party waives its right to an ESI conference by failing to timely request one, the parties may nevertheless hold such a conference by agreement or by order of the court upon motion. Mass.R.Civ.P. 26(f)(2)(B). Regardless of how the ESI conference is initiated, the same topics identified above are to be addressed, and an ESI plan is to be filed with the court within 14 days after the conference. Mass.R.Civ.P. 26(f)(2)(C).
ESI Plans and Orders
A court may enter an order governing the discovery of ESI sua sponte (after notice to the parties), or after conference, motion or stipulation. In addition to the topics set out in Rule 26(f)(2)(C), an order governing the discovery of ESI may also address whether discovery of ESI is reasonably likely to be sought and the permissible scope of such discovery. Mass.R.Civ.P. 26(f)(3)(A-J). Nonetheless, the general scope of discovery is unaffected. Mass.R.Civ.P. 26(b)(1).
Cost-Shifting and Inaccessible ESI
Rule 26(f)(2)(C)(vii) directs the parties to discuss at their ESI conference “whether allocation among the parties of the expense of production is appropriate.” The allocation of expense is often referred to as “cost shifting.” One specifically identified area where cost shifting may be imposed is with regard to “inaccessible” ESI.
“Inaccessible” ESI is defined as ESI “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Mass.R.Civ.P. 26(f)(1). For example, data archived on back-up tapes might be determined to be “inaccessible.” In the context of a motion to compel, a party objecting to the production of ESI pursuant to Rule 26(f)(4)(A) bears the burden of showing inaccessibility. Mass.R.Civ.P. 26(f)(4)(B). Even where this showing is made, the requesting party may nonetheless obtain discovery of the inaccessible ESI if the requesting party is able to show that the likely benefit of its receipt outweighs the likely burden of its production. Mass.R.Civ.P. 26(f)(4)(C). In making this determination, the court should consider the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues. Id. Further, where the production of inaccessible ESI is ordered, the court may set conditions for its discovery, including cost-shifting.
Court’s Power to Limit Discovery
The amended Rules also explicitly grant courts the power to limit discovery from accessible ESI sources “in the interests of justice” based on a consideration of several factors. See Mass.R.Civ.P. 26(f)(4)(E). This is one area where the Massachusetts Rules differ from the Federal Rules of Civil Procedure (“Federal Rules”), although federal courts clearly possess the power to limit discovery generally. See Fed.R.Civ.P. 26(b). In fact, there is significant overlap between the factors set out in Federal Rule 26(b)(2)(C) (identifying limitations to which all discovery is subject) and Massachusetts Rule 26(f)(4)(E), including whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive, whether the discovery sought is unreasonably cumulative or duplicative, and whether the likely burden or expense of the discovery outweighs the likely benefit.
ESI Lost as a Result of Routine, Good-Faith Operations
Rule 37 has been amended to include a “safe harbor” provision that protects parties from sanctions for failing to produce ESI that has been lost as a result of the routine, good-faith operation of an electronic information system. Mass.R.Civ.P. 37(f). Note, however, that this amendment was not intended to alter any existing state law on the obligation to preserve evidence when litigation is reasonably anticipated or has commenced. Mass.R.Civ.P. 37 (Reporter’s Notes 2014).
Non-Parties and Unrepresented Parties
The impact of the ESI amendments to the Rules will not be limited to represented parties. For example, under amended Rule 45(b), a subpoena may command a person to whom it is directed to produce ESI and, under amended Rule 16, a court may direct an unrepresented party to appear for a conference.
The production of ESI creates an increased risk that a party will inadvertently produce material that is protected by privilege and/or the work-product doctrine. Thus, it bears noting that the amended Rules include a “clawback” provision whereby a producing party may assert a claim of privilege or of protection under the work product doctrine with respect to information, including but not limited to ESI, that is inadvertently produced in discovery. Mass.R.Civ.P. 26(b)(5)(B) & (C).
Stephany Collamore is an associate in the Litigation Department at Foley Hoag LLP. Her practice is focused on complex litigation in the areas of accountants’ professional liability, governmental investigations and general commercial disputes.