Massachusetts Civil Procedure Rule 26: General Provisions Governing Discovery
(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.
(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: 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.
Amended December 16, 1980, effective January 1, 1981; amended effective July 1, 1996; amended February 27, 2008, effective April 1, 2008.
Reporter's Notes (2008): The addition of subparagraph (5) to Rule 26(b) adds to the Massachusetts discovery rules the requirement of a "privilege log." The first sentence of subparagraph (5) is taken in part from the 1993 amendment to Rule 26(b) of the Federal Rules of Civil Procedure that sets out a procedure in connection with a claim of privilege or protection in response to a discovery request. This 1993 amendment has not been previously adopted in Massachusetts. Unlike the cognate Federal rule, the Massachusetts rule specifically uses the term "privilege log." Language has been added to the first sentence of the Massachusetts version in order to facilitate judicial review of the appropriateness of a claim that a matter is privileged or otherwise subject to protection. The second sentence of the rule allows the party seeking discovery and the party withholding the information, by written agreement, or the court to waive the requirement of a privilege log or to limit the log to "certain documents, written communications, or things." The rule also makes clear that a party need not include information in the privilege log that is itself privileged. As is the case with the federal rule, there is no specific requirement in the Massachusetts rule that the privilege log be produced simultaneously with the claim of privilege or protection. In an attempt to resolve discovery disputes without the need for court intervention, the parties are encouraged to confer and resolve areas of disagreement regarding privilege or protection, including agreeing on the timing of the production of the privilege log. See Superior Court Rule 9C ("Settlement of Discovery Disputes") and Boston Municipal Court and District Court Joint Standing Order 1-04 ("Civil Case Management"), III, D, 4 ("Contested Discovery"). The requirement of a privilege log applies to a claim of privilege or right to protection asserted by a party only. This rule imposes no obligation to provide a privilege log on the part of a non-party who withholds privileged information after service of a subpoena for the production of documentary evidence under Rule 45(b), although a court would appear to have authority to order preparation of a log.
(1996) Rule 26(c) has been amended to add a reference to "judicial district" to take into account the applicability of the Rules to the District Court and Boston Municipal Court.
(1973) As a result of S.J.C. Rule 3:15, Massachusetts practitioners are reasonably familiar with a broadened philosophy of discovery. The discovery rules (Rules 26-37) are in many respects similar to S.J.C. Rule 3:15. This is understandable, as Rule 3:15 and the new discovery rules were patterned in large measure upon Federal Rules of Civil Procedure, 26-37. On March 30, 1970, however, the Supreme Court promulgated an amended version of the federal discovery rules, containing several significant departures from existing patterns (and hence from Rule 3:15). Rules 26-37, although patterned closely upon the revised federal discovery rules, depart from them in several significant particulars. In each instance, the Advisory Committee felt the departure to be warranted either by Massachusetts needs or by ingrained Massachusetts practice.
Rule 26 expresses the overall philosophy of the discovery rules. It lists the types of available discovery; it emphasizes that, unless the Rules otherwise provide, the methods may be used as frequently as necessary; it specifies the scope of discovery in terms not of admissibility at the trial, but rather in terms of the possibility of discovering admissible evidence; and it spells out the procedure for relief from harassment-by-discovery.
Unlike S.J.C. Rule 3:15, Rule 26 explicitly permits the discovery of the existence and contents of an insurance agreement where such insurance may be the basis for satisfaction of the judgment, either directly or by way of indemnity. The insurance application, however, is not similarly discoverable. Of course, in an action in which the insurance policy or the application therefor is an essential element of the case, as, for example, in an action for the proceeds of a life insurance policy, the contents of both the policy and the application would be discoverable; Rule 26(b)(2) does not apply.
The first paragraph of Rule 26(b)(3) regulates the discovery of materials prepared in anticipation of litigation. First, such materials are not discoverable at all, unless they meet the requirements of Rule 26(b)(1); that is, they must be relevant to the subject matter of the pending action and/or reasonably calculated to lead to the discovery of admissible evidence. Second, the party seeking discovery must show (a) that he has substantial need of the materials to prepare his case; and (b) that he would sustain severe hardship were he to be forced to obtain the equivalent of such materials by means other than discovery. It will be noted that the "good cause" requirement of former Federal Rule 34 (and S.J.C. Rule 3:15) has been eliminated, to be replaced by a specified special showing. The language, which is taken verbatim from Federal Rule 26(b)(3), as amended, is designed to "conform to the holdings of the cases" construing the former Federal Rules, 48 FRD 497, 500 (1970).
Third, in keeping with the rule of Hickman v Taylor, 329 US 495 (1947), discovery, except in extremely unusual circumstances, may not be had of an attorney's mental impressions and similar intellectual work-product. This protection applies also to "other representative(s) of a party", provided their work relates to litigation. This pertains to "mental impressions and subjective evaluations of investigators and claim-agents," 48 FRD 500, 502 (1970).
The second paragraph of Rule 26(b)(3) is taken verbatim from its federal counterpart. "Many, but not all, of the considerations supporting a party's right to obtain a statement applies also to the non-party witness. Insurance companies are increasingly recognizing that a witness is entitled to a copy of a statement and are modifying their regular practice accordingly," 48 FRD 497, 503 (1970).
Rule 26(b)(4) contains the full text of the cognate federal rule. It permits the following means of discovering certain information pertaining to experts:
1. Through interrogatories:
a. The identity of each prospective expert witness;
b. The subject matter on which he is expected to testify; and.
c. The facts, opinions (and grounds therefor) as to which the expert is expected to testify.
2. Upon obtaining a court order, discovery may continue "by other means", which presumably includes discovery of documents, and depositions. (The question of fees and expenses will be considered hereafter.) An expert retained for litigation purposes need divulge his opinion only upon a showing of circumstances which preclude the discovering party's obtaining the information by other means.
The exceptional circumstances of this rule do not apply to the report of a non-witness examining physician, which is specially regulated by Rule 35(b).
In the usual situation, the party seeking discovery must pay the expert's fee for time spent in, for example, attending a discovery deposition and for time spent by a non-witness expert in responding to any kind of "exceptional circumstances" discovery. Moreover, in the former case, the court may require the discovering party to pay his opponent a portion of the expense incurred in initially obtaining the fact and opinion from the expert; in the case of "exceptional circumstances" discovery of expert opinion, the court must order payment.
Rule 26(c), which substantially copies Federal Rule 26(c), provides the mechanism by which a person (whether party or not) from whom discovery is sought may obtain court relief in the event he believes he is being unfairly oppressed. Generally, the order will be sought in the court in which the action is pending. However, in the case of a deposition being taken in another county, the order may be sought from the court in the county where the deposition is to be taken. It is assumed that the latter court will be co-equal to the former court. Thus, in an action pending in the Barnstable Superior Court, in which a deposition is being taken at Boston, the application for relief will be made to the Suffolk Superior Court.
Rule 26(d) copies Federal Rule 26(d) and makes clear that the so-called "rule of due diligence" no longer obtains. The parties, that is, may conduct discovery simultaneously; no longer will the party who first files notice of his opponent's deposition win, for that reason alone, priority in the conducting of depositions. The rule does contemplate that in certain situations, convenience and justice may require a court-imposed order of discovery. In the ordinary case, however, discovery will proceed in whatever order the parties select.
Rule 26(e) follows Federal Rule 26(e). Rule 26(e)(1) requires supplementation of previously complete responses to discovery (either in a deposition or by interrogatories, or otherwise) in only certain limited respects: (a) the identity and location of persons having any knowledge of discoverable matters, provided the identity and location of such persons was previously directly sought by discovery; and (b) the identity of each prospective expert witness and the subject on which he is expected to testify, again provided that such information was directly sought by previous discovery. Rule 26(e)(1)(B) also requires disclosure of the substance of the expert's testimony. Otherwise, a party who desires to force his opponent to supplement prior discovery may do so only (a) if he obtains an order of court; (b) if he obtains his opponent's agreement; or (c) if he strictly requests supplementation of prior answers to make this clear.