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Legal Updates

Massachusetts SJC Adopts Changes To Discovery Rules

The Massachusetts Supreme Judicial Court (“SJC”) recently implemented significant changes to the Massachusetts Rules of Civil Procedure (“MRCP”), affecting discovery procedures in lawsuits in Massachusetts state courts.

The changes made to the MRCP, which went into effect this past summer, are summarized below.

Rule 26

Under the revised MRCP 26 adopted by the SJC, trial judges are explicitly authorized to take into account proportionality considerations in determining whether to issue a protective order limiting the extent to which a party must produce documents or information in response to another party’s discovery requests.

Specifically, a judge may consider:

  • Whether it is possible for the requesting party to obtain the information from some other source that is more convenient or less burdensome or expensive;
  • Whether the discovery sought is unreasonable, cumulative or duplicative; and
  • Whether the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account (i) the parties’ relative access to the information, (ii) the amount in controversy, (iii) the resources of the parties, (iv) the importance of the issues, and (v) the importance of the requested discovery in resolving the issues.

These changes to MRCP 26 – which closely mirror similar revisions made last year to Rule 26 of the Federal Rules of Civil Procedure (“FRCP”) – are likely to strengthen the hands of parties objecting to discovery requests that they view as unreasonably broad or burdensome.

Rule 34

The SJC also adopted an amendment to MRCP 34, which governs requests for production of documents, to reflect the fact that litigants normally produce copies of requested documents, rather than originals. (Here, as well, a similar change was made to FRCP 34 in 2015.)

Under the amended MRCP 34, a party receiving copies of requested documents may request “a fair opportunity to verify the copies by comparison with the originals.” However, the revised rule provides that if a party responding to a request for production of documents believes that producing the originals would be unduly burdensome or expensive, it may seek a protective order restricting access to the originals or requiring the requesting party to pay costs associated with producing the originals.

Rule 1

Finally, MRCP 1, which summarizes the overall purpose of the civil procedure rules, has been amended to provide that the rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” This change – mirroring a similar 2015 amendment to the FRCP – is intended to underscore the overall spirit in which the MRCP are to be interpreted and applied.

Other Proposed Changes Not Adopted

The SJC also considered, but ultimately decided not to adopt, other proposed changes to MRCP 26 that would have narrowed the overall scope of pretrial discovery – again, similar to changes made last year to the FRCP.

Most notably, under the amended FRCP 26(b)(1), parties may seek discovery of relevant, non-privileged information that is both relevant and “proportional to the needs of the case.” Prior to this amendment, FRCP 26(b)(1) did not include any proportionality requirement; rather, parties could seek discovery of any information “reasonably calculated to lead to the discovery of admissible evidence.”

In accordance with the views expressed by a majority of the special committee advising the SJC on the proposed rule changes, the SJC decided to adopt a “wait and see” approach on this issue, to enable it to evaluate the impact of the revised FRCP 26(b)(1) before making a similar change to the MRCP.

Recommendations

We recommend that parties litigating in Massachusetts closely review these changes to the MRCP and, in conjunction with their counsel, consider how pending and future cases may be impacted.

In particular, as a result of the more limited changes to MRCP 26 adopted by the SJC, the scope of potential discovery in Massachusetts state-court actions now appears broader than in lawsuits brought in federal court. Thus, in cases over which the state and federal courts would both have subject-matter jurisdiction – such as diversity cases, as well as actions involving both federal and state claims – litigants may want to consider, in deciding whether to file in state or federal court or to remove a case to federal court, whether broader or narrower discovery standards would best serve their interests.

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Please feel free to contact us if you have questions about the recent amendments to the MRCP or how they may impact current or future litigation involving your organization.