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Massachusetts Uniform Summary Process Rule 7: Discovery

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(a) General. Either party may obtain discovery by serving on the opposing party a demand therefor and filing a copy of such demand with the court. Such service and filing shall be made no later than the first Monday after the Monday entry day. A discovery demand, in the form provided in this section, shall be served on the opposing party by mailing first-class or by delivering a copy of it to that party or that party's attorney. A discovery demand shall be filed with the court by mailing first-class or by delivering a copy of it to the clerk. Filing or service by mail is complete upon receipt.

Discovery may be demanded in any of the following forms:

(1) written interrogatories;

(2) request(s) for admission;

(3) request(s) for the production of documents.

Neither written interrogatories nor requests for admissions shall exceed 30 in number including any interrogatories or requests subsidiary or incidental to other interrogatories or requests, however grouped or combined.

Requests for discovery or further discovery not made in compliance with the requirements of this rule shall not be allowed unless on motion and for good cause shown. A request for discovery in response to an answer or counterclaim shall be deemed to establish good cause.

All papers relating to discovery which are filed with the clerk shall contain the docket number of the case.

(b) Postponement of Trial Date. Upon proper service and filing of a demand for discovery as required in section (a) above, hearing of the action shall be automatically postponed and rescheduled for the date two weeks from the original trial date. With the service of the discovery demand, the party demanding discovery shall notify the opposing party of the automatic two week postponement, the newly scheduled trial date, and the requirement in Rule 7(c) as to filing and service of responses no later than ten days after receipt of the request.

(c) Response to Demand for Discovery; Relief or Objection. The party of whom discovery is demanded shall respond by filing and serving answers to the interrogatories and/or responses to the requests for admission, and/or by producing the documents no later than ten days after receipt of the requests. The response shall be completed upon its receipt.

Each interrogatory shall be answered separately and fully in writing under the penalties of perjury, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections by the attorney or person making them. The scope and procedure for requests for production of documents and responses thereto shall be made as permitted and as required by Mass.R.Civ.P. 34(a)(1) and (b); provided, however, that the time limits specified in this rule shall govern. The scope and effect of and the procedure for requests for admission and responses thereto shall be made as permitted and as required by Mass.R.Civ.P. 36; provided, however, that the time limitations specified in this rule shall govern.

A party or the party's attorney objecting to or seeking relief from a discovery request may do so by a motion for protective orders or other relief which shall be filed within five days after receipt of such discovery request.

(d) Enforcement of Discovery Demand. The fact of a party's failure to respond to a demand for discovery as required by this rule and within the time specified by this rule shall be brought to the attention of the court by the party aggrieved thereby or the party's attorney within five days after such failure by a motion for an order compelling discovery as permitted by Mass.R.Civ.P. 37(a) or by an application for final judgment for relief or dismissal.

If a party willfully fails to respond to a discovery demand, on motion heard on the rescheduled trial date the court may make such orders in regard to the failure as are just, and among others the following:

(1) an order that matters regarding which discovery is sought shall be taken to be established for the purposes of the action in accordance with the claim of the moving party;

(2) an order refusing to allow the party failing to respond to support or oppose designated claims or defenses or prohibiting the party from introducing designated matters in evidence;

(3) an order striking out pleadings or parts thereof or staying further proceedings until the discovery demand is satisfied or dismissing the action or any part thereof, or rendering a judgment by default against the party failing to respond.

(e) Further Postponement of Trial Date. Upon proper service and filing of a motion for a protective order against a demand for discovery, or upon proper service and filing of a motion to compel response to a demand for discovery or for final judgment for failure to respond, the rescheduled trial date may be postponed and may be rescheduled, if needed, by the court following the hearing and ruling on such motion.

As amended, effective February 1, 1982 and February 1, 1993.

COMMENTARY: This rule establishes a limited right to discovery in summary process actions.

In keeping with the need for expeditious procedure, an automatic postponement of the trial date for two weeks from the originally scheduled date results from the timely service and filing of a discovery demand. This two-week postponement allows a reasonable time prior to the rescheduled trial date for a response to the demand and for action permitted by the rule, should a timely response not be made. The party demanding discovery must notify the opposing party of the automatic two-week postponement and of the requirements of Rule 7(c).

It is noteworthy that demands for discovery must be filed and served no later than the Monday prior to the original trial date. Because the answer and discovery deadlines fall on the same day, a plaintiff will often not know in time whether discovery is desirable because of the answer and any possible counterclaim. Therefore, section (a) provides that the plaintiff's request for discovery in response to an answer or counterclaim should be allowed on motion. In most cases, the defendant (tenant) will probably not object to any additional delay caused by the plaintiff's request for discovery. See Rule 6 [hearing on pretrial motions on date case is originally scheduled for trial].

In section (d), the sanctions listed for failure to respond to a discovery demand are based on Mass. R. Civ. P. 37(b)(2)(A), (B), and (C). For the requirements of service, see Rule 3 and Mass. R. Civ. P. 5.