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Massachusetts Law About Discovery

The Scope of Discovery

"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." -- Massachusetts Rules of Civil Procedure Rule 26(b)(1).

Discovery Tools

Interrogatories

"Interrogatories are written questions propounded to a party designed to elicit information useful in the prosecution or defense of a suit. The responding party must sign answers to interrogatories under the pains and penalties of perjury; therefore, the signed answers are the equivalent of sworn testimony given under oath." -- Massachusetts Discovery Practice, s. 10.1.

Depositions

"A deposition is like testimony in court--under oath--but it occurs before trial, outside the courtroom, and without a judge or jury present. While depositions have a number of uses, parties take depositions primarily in the hope of uncovering information that supports their legal claims and undermines the other side's legal claims." -- Nolo's Deposition Handbook, p. 2.

Requests for Admissions

"Written requests for admission . . . provide parties with a method by which admissions of facts may be obtained and used in support of, or in opposition to, summary judgment motions or at trial." -- Massachusetts Practice v.49 (Discovery), s. 10:1.

Requests for Production (Document Requests)

A "written request that another party provide specified documents or other tangible things for inspection and copying." Black's Law dictionary. A request for production "is focused on the discovery of tangible (rather than testimonial) evidence and provides for the discovery of all types of tangible evidence, such as documents, photographs, electronic data, or other objects relevant to the litigation." -- Massachusetts Practice v.49 (Discovery), s. 6:1.

Request for Permission to Enter upon Land

Mass. R. Civ. P. 34 "allows you to request an opportunity to enter upon land in the possession or control of another party so that you may test, photograph, sample, or otherwise inspect relevant conditions, objects, or operations on the premises." -- Massachusetts Discovery Practice, s. 11.1.

Physical and Mental Examinations

"In many civil actions, the medical status of a party is at issue. This may be because the extent of an ongoing injury is unresolved, a party is seeking damages for mental injury, or the nature of the injury is in dispute. In order to allow the parties a fair opportunity to explore these issues, the rules of discovery permit the physical and mental examination of individuals." -- Massachusetts Discovery Practice, s. 14.1.

Court Rules

Massachusetts Rules of Civil Procedure, see rules 26-37, 45

Massachusetts Guide to Evidence

Massachusetts Trial Court Uniform Summary Process Rules, see rules 6-7

Uniform Small Claims Rules, see rule 5

Uniform Rules on Subpoenas to Court Officials

Superior Court

Massachusetts Superior Court Rules, see rules 9A-9C, 30-30B

Massachusetts Superior Court Standing Order 1-09, Written Discovery

Massachusetts Superior Court Standing Order 1-88, Time Standards

District/Municipal Court

Massachusetts District/Municipal Courts Supplemental Rules of Civil Procedure, see rules 105, 111

Joint Standing Order 1-04, Civil Case Management

Joint Standing Order 2-04, Time Standards for Civil Cases

Probate and Family Court

Massachusetts Supplemental Rule of the Probate and Family Court, see rules 27A, 45

Massachusetts Rules of Domestic Relations Procedure, see rules 26-37, 45

Massachusetts Probate and Family Court Standing Order 1-06, Case Management and Time Standards for Cases Filed in the Probate and Family Court Department

Housing Court

Massachusetts Housing Court Standing Order 1-96, Filing Written Discovery Materials in Civil Cases

Housing Court Department Standing Order 1-04, Time Standards

Juvenile Court

Massachusetts Juvenile Court Rules for the Care and Protection of Children, see rules 9, 13

Massachusetts Juvenile Court Standing Order 2-07, Time Standards

Land Court

Massachusetts Rules of the Land Court, see rules 6-7

Land Court Standing Order 1-04, Time Standards for Cases Filed in the Land Court Department

Massachusetts Laws

MGL c. 233, s. 24-63, Witnesses and Evidence

MGL c. 233, s. 79G, Evidence: Medical and Hospital Services

Forms

Forms and Sample Letters, Mass Legal Help. Sample forms for use in a debt collection suit. Includes interrogatories, request for admissions, and request for production.

LexisNexis Automated Forms, LexisNexis. Archive of more than 6000 free forms covering most legal topics. Use the search function to find forms specific to discovery. Free registration required to download forms.

Selected Case Law

Caron v. General Motors Corp., 37 Mass. App. Ct. 744 (1993). "Requests for admissions should be thoughtfully structured to settle before trial issues as to which there may be no real contest. It is an abuse to deluge an opposing party with successive banks of requests for admissions hoping that he may inadvertently give away his case."

Doe v. Senechal, 431 Mass. 78 (2000). A physical or mental examination is allowed only if the condition of the person to be examined is "in controversy," meaning his or her condition "relates directly to the proof or defense of the underlying cause of action," such as the condition of "a plaintiff in a negligence action who asserts mental or physical injury, or a defendant who asserts his mental or physical condition as a defense to a claim."

Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544 (2002). Nonparties to litigation do not have a duty to preserve evidence that is within their control for use by the parties even if they know that the evidence is relevant to the litigation.

GTE Products Corp. v. Stewart, 414 Mass. 721 (1993). "The purposes for which the discovery rules exist 'are to avoid surprise and the possible miscarriage of justice, to disclose fully the nature and scope of the controversy, to narrow, simplify, and frame the issues involved, and to enable a party to obtain the information needed to prepare for trial.'"

Gunn v. New York, New Haven & Hartford R.R. Co., 171 Mass. 417 (1898). A person who is answering interrogatories as the representative of a business entity (e.g., the president of a corporation responding to interrogatories served on the corporation) has a duty to make reasonable inquiry of all of the business's employees and agents to obtain information that will help the person answer the interrogatories.

Kippenhan v. Chaulk Services, Inc., 428 Mass. 124 (1998). A party is not responsible for the loss, destruction, or alteration of evidence unless the party knew or should have reasonably known, at the time the items were lost, destroyed or altered, that the items might be evidence in a possible court action.

Reynolds Aluminum Building Products Co. v. Leonard, 395 Mass. 255 (1985). Failure to respond to a proper request for admissions establishes the truth of the admissions for purposes of the case.

Other Web Sources

Depositions and Witnesses, American Bar Association Section of Litigation. Links to many resources on preparing and conducting depositions, including articles, newsletters, podcasts, and books.

Discovery: An Overview, The Legal Information Institute at Cornell University Law School. A brief explanation of the discovery process. Focus is on the Federal Rules, but much of the information applies to states such as Massachusetts as well.

Lawsuit Survival Guide, Nolo, 2003. Step-by-step guide to litigation that explains each stage in the process, including discovery. Requires Library Card for access. http://www.lawlib.state.ma.us/libraries/services/borrower.html.

Nolo's Deposition Handbook, Nolo, 2010. Depositions basics for the people taking and defending depositions and those being deposed. Requires Library Card for access.

Represent Yourself in Court: How to Prepare & Try a Winning Case, Nolo, 2013. Includes information on starting your case, pretrial procedures, motions, opening statement, cross examination and more. Requires Library Card for access.

Representing Yourself in an Eviction Case: Discovery, Mass. Law Reform Institute, July 2008. Booklet with forms for a tenant to use to obtain discovery during an eviction case.

Understanding "Discovery": Sharing Information in the Probate and Family Court, Neighborhood Legal Services, May 2000. Information about the discovery process in Probate and Family Court, covering mandatory disclosure, subpoenas, and formal discovery.

Print Sources

With Forms

Bender's Forms of Discovery, Matthew Bender, looseleaf.

Deposition Strategy, Law, and Forms, Matthew Bender, looseleaf.

Massachusetts Deposition Practice Manual, 3rd ed., MCLE, 2013, looseleaf.

Massachusetts Discovery Practice, MCLE, 2012.

Massachusetts Litigation Forms and Analysis, by Anthony Doniger, Law Cooperative, looseleaf.

Massachusetts Pleading and Practice: Forms & Commentary, Bender, looseleaf.

Massachusetts Practice v.49 (Discovery), Thomson/West, 2008, with supplement.

Without Forms

Deposition: Strategies for Effectiveness in the Superior Court, MCLE, 2005.

Discovery Practice, 5th ed., Aspen, 2009 (looseleaf).

Effective Depositions, American Bar Association Section of Litigation, 2010.

Effective Discovery in Employment Litigation, MCLE, 2005.

Pretrial Litigation Primer, MCLE 2012.

Taking and Defending a Dynamite Deposition in Your Next Employment Case, MCLE, 2010.