Section Review

Superior Court standing order 1-09: New rules promote transparency in written discovery

I. Background

The use of general objections and “boilerplate” objections in written discovery responses has become pervasive in Superior Court practice. Litigants frequently use objections to obscure whether responsive information or documents exist and/or whether such information or documents will be produced. The remedy available to the requesting party has been to initiate a Superior Court Rule 9C conference in an attempt to resolve the areas of disagreement and then, if necessary, file a motion to compel under Rule 37 of the Massachusetts Rules of Civil Procedure. To address this problem, the Superior Court has issued Standing Order 1-09 requiring greater transparency in responses to written discovery requests.

The new standing order, which is effective Jan. 12, 2009, contains four primary components. First, it establishes a number of uniform, defined terms that are deemed incorporated into all discovery requests. Second, the Standing Order largely prohibits general objections. Third, each objection to an individual discovery request must be specific to that request and have “a good faith basis.” Finally, Standing Order 1-09 mirrors the amendment to Rule 26(b) of the Massachusetts Rules of Civil Procedure, requiring the responding party to produce a privilege log identifying documents withheld on the basis of privilege or as attorney work product. Standing Order 1-09 does not alter the scope of discovery under Rule 26(b) of the Massachusetts Rules of Civil Procedure.

II. New definitions incorporated by reference

With a few exceptions, Standing Order 1-09 adopts Local Rule 26.5 from the U.S. District Court for the District of Massachusetts. Section 1(c) of the standing order contains definitions for the following terms that are deemed incorporated by reference into all discovery requests: communication, document, identify (with respect to persons), identify (with respect to entities), identify (with respect to documents), parties, person, concerning and state the basis or state all facts. Standing Order 1-09 also permits the use of other defined terms specific to the particular litigation, the use of abbreviations, and narrower definitions for the defined terms in §1(c). See §1(a).

III. Objections to interrogatories

Standing Order 1-09 significantly alters the widespread practice of asserting general objections or “boilerplate” objections in response to interrogatories. A party responding to interrogatories can no longer simply assert standard objections, prolonging the time for a specific response until a Rule 9C conference or a motion to compel. Under the standing order, an objection must be specific and made in good faith. See §2.

Standing Order 1-09 flatly prohibits the use of general objections in answers to interrogatories. See id. “If a party refuses to answer an interrogatory, the party shall so state and identify each objection asserted to justify the refusal to answer.” Id. If a party objects but still answers a specific interrogatory, the responding party must also state that, “notwithstanding the objection no information has been withheld from the answer,” or that “information has been withheld from the answer because of the objection.” Id. When information is withheld, the answer must include a description of the information withheld and the objection justifying the withholding. See id.

IV. Objections to requests for production

Much like its provisions for interrogatories, Standing Order 1-09 also limits the use of objections and requires greater transparency in responses to requests for production. A party can no longer use objections to obscure whether responsive documents exist or whether responsive documents will be produced or withheld.

A. Initial written response

The standing order sets forth relaxed requirements for an initial response to a request for production made in advance of the actual production of documents and/or things. In that case, the initial response may include general objections. If a party makes an initial written response asserting general objections, a more detailed, supplemental response is required within 10 days of the completion of production. See §3(a). Standing Order 1-09 also requires that the initial response “articulate with clarity the scope of the search conducted or to be conducted.” See §3(c).

B. Supplemental written response

When a party has completed its production, general objections are no longer permitted. See §3(b). In an effort to make clear what has been produced and what has been withheld, Standing Order 1-09 requires that each supplemental response contain one of the following statements:

(i)   notwithstanding prior general objections, all responsive documents or things in the possession, custody, or control of the responding party have         been produced;

(ii) after diligent search no responsive documents or things are in the possession, custody, or control of the responding party; or

(iii) the specific objection made to the request.

See id. If a party asserts a specific objection, the standing order imposes additional requirements. In addition to the specific objection, the responding party must also describe the nature of the responsive documents and things that are being withheld on the basis of the objection. Id.

In its supplemental response, a party must “articulate with clarity” any change in the scope of the search (as described in its initial response) conducted for responsive documents and things. See §3(c). A party must also describe any reasons for not searching particular physical or electronic locations. Id. Specifically, §3(c) states, “[i]f the scope of the search does not include all locations, including electronic storage locations, where responsive documents or things reasonably might be found, the responding party shall explain why these locations have been excluded from the scope of the search.”

V. Privilege logs now required

Effective April 1, 2008, the addition of Rule 26(b)(5) to the Massachusetts Rules of Civil Procedure formalized the use of privilege logs in Superior Court discovery. Absent agreement of the parties, the amendment requires the responding party to prepare a privilege log when documents are withheld on the basis of privilege or as attorney work product. See Mass. R. Civ. P. 26(b)(5). The privilege log must contain 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.” See id. Standing Order 1-09 reflects this amendment and requires that the privilege log be served with the supplemental response, unless the requesting party waives entitlement to the privilege log or agrees to a later date. See §3(b).

VI. Conclusion

Standing Order 1-09 significantly changes the landscape of written discovery in the Superior Court. These changes make clear that a party can no longer satisfy its discovery obligations by serving general objections or by the simple assertion of boilerplate objections in response to interrogatories or requests for production. Litigators and their clients must now be prepared to provide greater transparency in written discovery responses. Parties no longer will be permitted to use objections to obscure the existence of responsive information, documents and things.

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David K. McCay is an associate at Mirick, O’Connell, DeMallie & Lougee LLP in Worcester.  He represents businesses, business owners and employers in a variety of business and employment disputes.

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