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Rule 26 – General Provisions Governing Discovery

May 13, 2021 | Civil 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)(1) 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.

(A)Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

The court, upon motion, may order the withholding party to provide such additional information as is necessary to assess the claim of privilege.

(B)Information mistakenly produced; claim of privilege. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party shall promptly return, sequester, or destroy the specified information and any copies it has; shall not use or disclose the information until the claim is resolved; shall take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under Trial Court Rule VIII, Uniform Rules on Impoundment Procedure , for a determination of the claim. The producing party shall preserve the information until the claim is resolved.

In resolving any such claim, the court should determine whether:

(i) the disclosure was inadvertent;
(ii) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(iii) the holder promptly took reasonable steps to rectify the error
(C)Effect of a ruling. If the court, following such procedure, or pursuant to an order under Rule 26(f)(3), upholds the privilege or protection in a written order, the disclosure shall not be deemed a waiver in the matter before the court or in any other proceeding.
(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, place, or manner; or the sharing of costs; (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)Electronically Stored Information.

(1)Definition.

“Inaccessible electronically stored information” means electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.

(2)Electronically Stored Information Conferences.

(A)Conference as of right. Upon the written request of any party made no later than 90 days after the service of the first responsive pleading by any defendant, the parties shall confer regarding electronically stored information. Such request shall be served on each party that has appeared, but it shall not be filed with the court. The conference shall be held as soon as practicable but no later than 30 days from the date of service of the request.
(B)Conference by agreement of the parties. At any time more than 90 days after the service of the first responsive pleading, any party may serve on each party that has appeared a request that all parties confer regarding electronically stored information. Such request shall not be filed with the court. If within 30 days after the request all parties do not agree to confer, any party may move that the court conduct a conference pursuant to Rule 16 regarding electronically stored information.
(C)Purpose of electronically stored information conference among the parties. The purpose of an electronically stored information conference is for the parties to develop a plan relating to the discovery of electronically stored information. Within 14 days after such conference the parties shall file with the court the plan and a statement concerning any issues upon which the parties cannot agree. At any electronically stored information conference the parties shall discuss:

(i) any issues relating to preservation of discoverable information;
(ii) the form in which each type of the information will be produced;
(iii) what metadata, if any, shall be produced;
(iv) the time within which the information will be produced;
(v) the method for asserting or preserving claims of privilege or of protection of trial preparation materials, including whether such claims may be asserted after production;
(vi) the method for asserting or preserving confidential and proprietary status of information either of a party or a person not a party to the proceeding;
(vii) whether allocation among the parties of the expense of production is appropriate, and,
(viii) any other issue related to the discovery of electronically stored information.
(3)Electronically Stored Information Orders. The court may enter an order governing the discovery of electronically stored information pursuant to any plan referred to in subparagraph (2)(C), or following a Rule 16 conference, or upon motion of a party or stipulation of the parties, or sua sponte, after notice to the parties. Any such order may address:

(A) whether discovery of the information is reasonably likely to be sought in the proceeding;
(B) preservation of the information;
(C) the form in which each type of the information is to be produced;
(D) what metadata, if any, shall be produced;
(E) the time within which the information is to be produced;
(F) the permissible scope of discovery of the information;
(G) the method for asserting or preserving claims of privilege or of protection of the information as trial-preparation material after production;
(H) the method for asserting or preserving confidentiality and the proprietary status of information relating to a party or a person not a party to the proceeding;
(I) allocation of the expense of production; and
(J) any other issue relating to the discovery of the information.
(4)Limitations on Electronically Stored Information Discovery.

(A) A party may object to the discovery of inaccessible electronically stored information, and any such objection shall specify the reason that such discovery is inaccessible.
(B) On motion to compel or for a protective order relating to the discovery of electronically stored information, a party claiming inaccessibility bears the burden of showing inaccessibility.
(C) The court may order discovery of inaccessible electronically stored information if the party requesting discovery shows that the likely benefit of its receipt outweighs the likely burden of its production, taking into account 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.
(D) The court may set conditions for the discovery of inaccessible electronically stored information, including allocation of the expense of discovery.
(E) The court may limit the frequency or extent of electronically stored information discovery, even from an accessible source, in the interests of justice. Factors bearing on this decision include the following:

(i) whether it is possible to obtain the information from some other source that is more convenient or less burdensome or expensive;
(ii) whether the discovery sought is unreasonably cumulative or duplicative;
(iii) whether the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or
(iv) whether the likely burden or expense of the proposed discovery outweighs the likely benefit.

Mass. R. Civ. P. 26

Amended December 16, 1980, effective January 1, 1981; amended effective July 1, 1996; amended February 27, 2008, effective April 1, 2008; amended September 24, 2013, effective January 1, 2014; amended May 31, 2016, effective July 1, 2016; amended July 11, 2017, effective September 1, 2017.