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Rule 26 – General Provisions Governing Discovery

May 13, 2021 | Family Law, Massachusetts

(a)Discovery Methods. Parties may obtain discovery by one or more of the following methods except as otherwise provided in Rule 30(a) and Rule 30A(a), (b): depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise, or unless otherwise provided in these rules, the frequency of use of these methods is not limited.
(b)Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1)In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(2)Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.
(3)Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(4)Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(i) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)

(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
(5)Claims of Privilege or Protection of Trial Preparation Materials: Privilege Log. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as material prepared in anticipation of litigation or for trial, the party shall make the claim expressly and, without revealing information that is privileged or protected, shall prepare a privilege log containing the following information: the respective author(s) and sender(s) if different; the recipient(s); the date and type of document, written communication or thing not produced; and in general terms, the subject matter of the withheld information. By written agreement of the party seeking the withheld information and the party holding the information or by court order, a privilege log need not be prepared or may be limited to certain documents, written communications, or things.
(c)Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or judicial district, as the case may be, where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court;
(6) that a deposition after being sealed be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.

(d)Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.
(e)Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

(1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony.
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
(f)Format of Discovery Motions. A motion to compel (1) further responses to interrogatories, (2) answers to a request for admissions, (3) answers to questions propounded at a deposition, or (4) production of documents or tangible things shall be submitted with a separate document setting forth each separate interrogatory, item or category of items, request, question, document or tangible thing to which further response, answer or production is requested. Said separate document shall include the response given, and the factual and legal reasons that the court should compel the specific item. Materials may not be incorporated by reference in the documents accompanying the motion. If pleadings or other documents in the court file are relevant to the motion, the party relying on such pleadings or other documents shall clearly identify and summarize each relevant document in a separate paragraph in any papers submitted to the court regarding the discovery motion. The motion must include a sworn statement by the moving party setting forth the specific steps taken in an attempt to obtain the desired discovery responses. The responding party shall submit to the court and to the moving party a written statement setting forth the reasons for non-compliance and/or a denial, in whole or in part, of the allegations of the motion to compel and its supporting documentation. Said written statement shall be served not later than two (2) business days before the hearing.
(g)Mandatory Pre-Motion Conference. Prior to seeking judicial resolution of a discovery or procedural dispute, the attorneys for the affected parties or non-party witness shall confer in good faith in person or by telephone in an effort to resolve the dispute.
(h) Certification of Discovery Motions. All discovery motions shall contain a certificate by the party filing same that efforts to resolve the discovery dispute without the necessity of court intervention have been attempted and failed. The certification shall be included in the statement required of the moving party under Rule 26(f) supra.
(i) No-Contact Order. Where there is a no-contact order in effect, the parties shall be exempted from the requirements of Rule 26(f) and (g). There shall be no requirement that they confer in order to resolve the discovery dispute.
(j)Special Master. The court, on its own motion or at the request of either party, may appoint a special master to control the extent of discovery, including the scheduling and oversight of depositions as more fully set out in Rule 30(c), the time for completion of discovery and to resolve any discovery disputes which may arise during the course of the litigation. Prior to the appointment of said special master, the court may inquire whether the parties can agree upon a special master. The court may appoint the person agreed upon or such other suitable person.

The special master shall be appointed by a written order of reference. Said order shall set the terms and conditions under which the special master is to proceed and may specify or limit the special master’s powers. The fees and costs of the special master including a reasonable retainer shall be borne equally by the parties unless the special master determines that a different allocation of the fees and costs is appropriate.

Subject to the specifications and limitations stated in the order of reference, the special master has and shall exercise the power to regulate all matters before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order, including the authority to grant sanctions limited to reasonable counsel fees and/or special master fees if a party takes an unreasonable position, in accordance with the standards established pursuant to Rule 37.

If a party disagrees with a decision of the special master, the matter may be brought before the court. Each party and the special master shall submit proposed orders to the court. A party who has acted arbitrarily or in bad faith in bringing the matter before the court may be subject to sanctions as the court deems appropriate, including counsel fees and/or special master fees.

Mass. R. Dom. Rel. P. 26

Amended effective September 1, 1981; amended October 10, 1997, effective December 1, 1997; October 27, 1999, effective January 1, 2000; February 27, 2008, effective April 1, 2008.