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.
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.