New Massachusetts Rules of Civil Procedure Run At The Speed of eDiscovery

New Massachusetts Rules of Civil Procedure at once bring the state courts in line with the eDiscovery 2006 changes to the Federal Rules of Civil Procedure and leap over them to include a change or two that are approved, proposed or predicted for the FRCP over the next two years. The amendments go into effect on January 1, 2014. They bring Massachusetts in line with eDiscovery rules in the FRCP and in the most populous states in significant ways. Here are some of the high points:

Meet And Confer

A substantial new Rule 26(f)(2) gives any party the right to request a conference of all parties to “develop a plan relating to the discovery of electronically stored information.” At the conference, the parties shall discuss preservation, form of production, metadata to be produced, timing of production, methods for asserting or preserving privilege and confidentiality, cost allocation, and any other issue related 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.”

Scope of Discovery

On motion or on its own, the court may enter an order governing any aspect of eDiscovery, including the items above, and including overall scope of discovery. Including preservation in this language takes a page from current proposals to changes for FRCP Rule 26. While not mentioning the “P” word (proportionality), a new Rule 26(f)(4)(E) explicitly gives the court the power to manage scope. The court may limit the frequency or extent of eDiscovery “even from an accessible source”, based on convenience, burden, expense, availability of alternative sources, a balance of perceived benefit over burden, and an evaluation of whether the discovery is unreasonably cumulative or duplicative. However, unlike current proposed changes to FRCP 26, the new Massachusetts rules leave in place the Rule 26(b) definitions of scope, to include “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.”

Inaccessible Information 

As defined in new Rule 26(f)(1), inaccessible information means “electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost”. Later on, Rule 26(f)(4) confers on a party the right to object to discovery of inaccessible ESI. On a motion to compel or for a protective order regarding the objection, the party claiming inaccessibility has the burden of proof. The court may order its production based on whether “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.” The rule then codifies federal and state case law setting out a multi-point test concerning conditions under which the ESI may be produced, including allocation of cost.

Inadvertent Production of Privileged Materials

The new Rule 26 has substantial additions to 26(b)(5) dealing with claims of privilege. “If information produced in discovery is subject to a claim of privilege”, the producing party may notify the recipient, and the recipient “shall promptly return, sequester or destroy the specified information” and “shall not use or disclose” it until the claim is resolved. To resolve the claim, the court should determine whether (i) the disclosure was inadvertent; (ii) the holder of the privilege…took reasonable steps to prevent…; and (iii) the holder took reasonable steps to rectify…

Safe Harbor for Spoliation

Massachusetts adds a Rule 37(f) as a safe harbor for failure to produce eDiscovery of ESI “lost as a result of the routine, good-faith operation of an electronic information system.” Ironically, the Federal Rules Advisory Committee has put this exact language on the chopping block in favor of a test for identifying when spoliation may result in sanctions.


The Reporter’s Notes to the 2014 Amendments indicates that “(t)he driving force behind the decision to consider rules for electronic discovery in Massachusetts is the staggering growth of information in electronic form today.” The notes provide some interesting reasons for differences between these new rules and the FRCP. For example, they take into account that the new rules will apply to all courts in Massachusetts, large and small, not just certain business departments or the Superior Court. Since not all Massachusetts courts are prepared or resourced to have a right to a conference managed by a judge in every case, the drafters of this Rule 26(f) leave the parties to have a conference and make a plan without submitting it to the Court. But even with the differences, the new Mass Rules are more similar to FRCP than they are different. In terms of what parties must do to preserve and produce and in terms of how lawyers need to understand the electronic sources of evidence, the results should be remarkably the same.

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