Current through Register 1531, September 27, 2024
(1)
Scope of
Discovery. Unless otherwise provided by the Presiding Officer or
360 CMR 1.22, the scope of discovery shall be the same as that allowed under
Massachusetts law and 360 CMR 1.22 shall be construed in accordance with
Massachusetts law.
(a)
General. Subject to the limits of 360 CMR(1)(b) and
(c), discovery may be obtained as to any matter, not privileged, which is
relevant to the subject matter involved in the Adjudicatory Proceeding, 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 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 hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible
evidence.
(b)
Material
Prepared in Anticipation of Adjudicatory Proceeding. Subject to
the provisions of 360 CMR 1.22(c), a Party may obtain discovery of documents
and tangible things otherwise discoverable under 360 CMR 1.22 and prepared in
anticipation of or in preparation for an Adjudicatory Proceeding by or for
another Party or by or for that other Party's representative (including his
attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the Party seeking discovery has substantial need of the materials
in the preparation of his case and that he is unable without undue hardship to
obtain the substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been made, the
Presiding Officer shall protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other representative
of a Party concerning the subject matter of the Adjudicatory Proceeding.
A Party may obtain without the required showing a statement
concerning the subject matter of the Proceeding which was previously made by
that Party. Upon request, a person not a Party may obtain without the required
showing a statement concerning the action or its subject matter previously made
by that person. If the request is refused, the person may move for an order
from the Presiding Officer. For purposes of 360 CMR 1.22(1)(b), a statement
previously made is a written statement signed or otherwise adopted or approved
by the person making it, or a stenographic, mechanical, electrical, or other
recording, or a transcription thereof, which is a substantially verbatim
recital of an oral statement by the person making it and contemporaneously
recorded.
(c)
Experts Retained for Purposes of Adjudicatory
Proceeding. Discovery of facts known and opinions held by experts,
otherwise discoverable under 360 CMR 1.22(1)(a) and acquired or developed in
anticipation of or in preparation for an Adjudicatory Proceeding may be
obtained only as follows:
1. A Party may
through interrogatories require any other Party to identify each person whom
the other Party expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify, and to state the
substance of the facts and opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.
2. A Party may through interrogatories
require any other Party to identify facts known or opinions held by an expert
who has been retained or specially employed by another Party in anticipation of
an Adjudicatory Proceeding or in preparation therefor and who is not expected
to be called as a witness at the hearing, only upon a showing of exceptional
circumstances under which it is impracticable for the Party seeking discovery
to obtain facts or opinions on the same subject by other means. Unless manifest
injustice would result, the Presiding Officer shall require the Party seeking
the discovery to pay the expert a reasonable fee for time spent in responding
to such discovery and may require the Party seeking discovery to pay the other
Party a fair portion of its fees and expenses reasonably incurred by the latter
party in obtaining the discovery responses of the expert.
(2)
Methods of
Discovery. Discovery may be obtained through requests for
production of documents or other tangible things, depositions, interrogatories,
and requests for admission of fact, as provided in 360 CMR 1.22(3) through (6).
Discovery requests may be served by Hand Delivery, prepaid U.S. Mail or by
Electronic Medium.
(3)
Requests for Production of Documents or Other Tangible Things and
Entry upon Land for Inspection and Other Purposes. Any Party may
request any other Party to produce or make available for inspection or copying
any documents or tangible things, not privileged, not previously supplied, and
which are in the possession, custody, or control of the Party upon whom the
request is made. Any Party may request any other Party to permit entry upon
designated land or other property in the possession or control of the party
upon whom the request is served for the purpose of gathering information within
the scope of 360 CMR 1.22.
(a)
Procedure. The request may be served upon a Party
after commencement of the action and shall set forth the items to be inspected
by individual item or category with reasonable particularity. Where the request
is directed to the Authority, inspection shall be made at the office of the
Authority or such other place as the Authority shall designate. The Party upon
whom request is served shall respond within 30 days, unless the Presiding
Officer has established a shorter time period.
(b)
Authority Costs.
When a request is served upon the Authority, the Authority shall be entitled to
the fee per page for copies as determined from time to time by the Executive
Office for Administration and Finance.
(4)
Depositions. The
testimony of any witness may be taken by deposition only on motion made by a
Party and approved by the Presiding Officer.
(a)
Form and
Content. There shall be at least ten days notice to all Parties of
a motion to take a deposition. A motion requesting a deposition shall state the
name and address of the witness to be deposed, the subject matter concerning
which the witness is expected to testify, the time and place of taking the
deposition, the name and address of the person before whom the deposition is
desired and the reason why such deposition should be taken.
(b)
Authorization to
Take. The Presiding Officer shall allow the motion only:
1. if the Parties have agreed to submit the
deposition in lieu of testimony by the witness or witnesses to be
deposed;
2. if the deposition will
not unreasonably delay the Proceeding, the information sought is significant,
not privileged, cannot be discovered by alternative means, and the witness to
be deposed cannot appear before the Presiding Officer for the hearing or cannot
appear for the hearing without substantial hardship; or,
3. if there is a substantial reason to
believe that admissible, relevant, and probative evidence may be destroyed or
otherwise not be available for presentation by a witness at the hearing.
If the motion is allowed, the Presiding Officer shall require
the Party seeking the deposition to give at least five days notice of the
taking of the deposition to all Parties.
(c)
Person Before Whom Deposition
is Taken. Depositions shall be taken orally before a person having
the power to administer oaths.
(d)
Scope and Conduct of Deposition. Every witness
testifying upon deposition shall be duly sworn and put on oath. Each Party
shall have the right to cross-examine the witness. All objections made during
the deposition shall be noted. Objections shall be in short form, stating the
ground therefore. The testimony shall be taken stenographically or by voice
writing or recorded by any other means ordered by the Presiding Officer. The
transcription of the deposition shall be submitted to the witness for
examination and shall, unless waived, be signed by the witness and certified by
the officer before whom the deposition is taken. Any changes in form or
substance which the witness desires to make shall be entered upon the
deposition by the officer with a statement of the reasons given by the witness
for making them. The deposition shall then be signed by the witness, unless the
Parties by stipulation waive the signing or the witness is ill or cannot be
found or refuses to sign. If the deposition is not signed by the witness within
30 days of submission to him, the officer shall sign it and state on the record
the fact of the waiver or the reason, if any, why the witness has not signed
the deposition.
(e)
Recording by Other Than Stenographic Means. The
Presiding Officer may order that the testimony at a deposition be recorded by
other than stenographic means, in which event the Order shall designate the
manner of recording, preserving, and filing of the deposition. The order may
include other provisions to assure the recorded testimony will be accurate and
trustworthy.
(f)
Use of
deposition. Subject to appropriate rulings on objections and the
Parties' agreement regarding its use, the deposition shall be received in
evidence as if the testimony contained therein had been given by the witness in
the proceeding.
(5)
Interrogatories. A Party may serve written
interrogatories upon any other Party. No Party, without approval of the
Presiding Officer, shall serve more than 30 interrogatories, including
subsidiary or incidental questions. Each interrogatory shall be separately and
fully answered under the penalties of perjury unless it is objected to, in
which event the reasons for the objection shall be stated in lieu of the
answer; each answer or objection shall be preceded by the interrogatory to
which it responds. The answers are to be signed under oath by the Person making
them, the objections by the Person or attorney making them. The answers and
objections, if any, shall be served within 30 days or such other time as the
Presiding Officer specifies. Interrogatories may relate to any matter which can
be inquired into under this rule, and the answers may be used to the extent
permitted by these rules. The interrogatories may be served upon the Petitioner
after filing the Claim or Order, and upon any other Party with or after service
of the Claim or Order.
(a) An interrogatory
otherwise proper is not necessarily objectionable because an answer to the
interrogatory involves an opinion or condition that relates to fact or the
application of law to fact, but the Presiding Officer may order that such an
interrogatory need not be answered until after designated discovery has been
completed, or until another later time.
(b) Where the answer to an interrogatory may
be derived or ascertained from the business records of the Party upon whom the
interrogatory has been served or from an examination, audit, or inspection of
such business records, including a compilation, abstract or summary thereof,
and the burden of deriving or ascertaining the answer is substantially the same
for the Party served, it is a sufficient answer to such interrogatory to
specify the records from which the answer may be derived or ascertained and to
afford to the Party serving the interrogatory reasonable opportunity to
examine, audit, or inspect such records and to make copies, compilations,
abstracts, or summaries. A specification shall be in sufficient detail to
permit the interrogating Party to locate and to identify, as readily as can the
Party served, the records from which the answer may be ascertained.
(6)
Requests for
admission. A Party may serve upon any other Party a written
request for admission of the truth of any matters within the scope of discovery
allowed by 360 CMR 1.22(1) and set forth in the request that relate to
statements or opinions of fact or the application of law to fact, including the
genuineness of any documents described in the request. Copies of documents
shall be served with the request unless they have been or are otherwise
furnished or made available for inspection and copying. The request may be
served upon the Petitioner after filing of a Claim or Order and upon any other
Party with or after service of the Claim or Order.
(a) Each matter of which an admission is
requested shall be separately set forth. The matter is admitted unless, with 30
days after service of the request, or within such shorter or longer time as the
Presiding Officer may allow, the Party to whom the request is directed serves
upon the Party requesting the admission either:
1. a written statement signed by the Party
under the penalties of perjury specifically:
a. denying the matter; or
b. setting forth in detail why the answering
Party cannot truthfully admit or deny the matter; or
2. a written objection addressed to the
matter, signed by the Party or his attorney.
If objection is made, the reasons therefor shall be stated. A
denial shall fairly meet the substance of the requested admission, and when
good faith requires that a Party qualify his answer or deny only a part of the
matter of which an admission is requested, he shall specify so much of it as is
true and qualify or deny the remainder. An answering Party may not give lack of
information or knowledge as a reason for failure to admit or deny unless he
states that he has made reasonable inquiry and that the information known or
readily obtainable by him is insufficient to enable him to admit or deny. A
Party who considers that a matter of which an admission has been requested
presents a genuine issue for hearing may not, on that ground alone, object to
the request; he may, subject to the provisions of 360 CMR 1.22(6)(d), deny the
matter or set forth reasons why he cannot admit or deny it. Each admission,
denial, objection, or statement shall be preceded by the request to which it
responds.
(b) The
Party who has requested the admissions may move to determine the sufficiency of
the answers or objections. Unless the Presiding Officer determines that an
objection is justified, he shall order that an answer be served. If the
Presiding Officer determines that an answer does not comply with the
requirements of this rule, he may order either that the matter is admitted or
that an amended answer be served. The Presiding Officer may, in lieu of these
orders, determine that final disposition of the request be made at a
pre-hearing conference or at a designated time prior to the hearing. The
provisions of 360 CMR 1.22(6)(d) apply to the award of expenses incurred in
relation to the motion.
(c) Any
matter admitted under this rule is conclusively established unless the
Presiding Officer on motion permits withdrawal or amendment of the admission.
The Presiding Officer may permit withdrawal or amendment when the presentation
of the merits of the action will be served thereby and the Party who obtained
the admission fails to satisfy the Presiding Officer that withdrawal or
amendment will prejudice him in maintaining his action or defense on the
merits. Any admission made by a Party under 360 CMR 1.22 is for the purpose of
the pending action only and is not an admission by him for any other purpose
nor may it be used against him in any other proceeding.
(d)
Expenses for Failure to
Admit. If a Party fails to admit the genuineness of any documents
or the truth of any matters as requested under 360 CMR 1.22, and if the Party
requesting the admissions thereafter proves the genuineness of the
documentation or the truth of the matter, he may apply to the Presiding Officer
for an order requiring the other Party to pay him the reasonable expenses
incurred in making the proof, including reasonable attorney's fees. The
Presiding Officer shall make the order unless it finds that:
1. the request was objectionable;
2. the admission sought was of no substantial
importance;
3. the Party failing to
admit had reasonable grounds to believe that he might prevail on the matter;
or,
4. there was other good reason
for the failure to admit.
(7)
Protective
Orders. A Party to whom a discovery request is issued may move for
good cause shown for a protective order. The Presiding Officer may make any
order which justice requires to protect a Party or person from annoyance,
embarrassment, oppression, or undue burden or expense, and may direct one or
more of the following:
(a) that the discovery
not be had;
(b) that the discovery
may be had only on specified terms and conditions, including a designation of
the time or place;
(c) that the
discovery may be had only by a method of discovery other than that selected by
the party seeking discovery;
(d)
that certain matters not be inquired into, or that the scope of the discovery
be limited to certain matters;
(e)
that a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
or
(f) that the discovery be
conducted with no one present except persons designated by the Presiding
Officer.
(8)
Supplementation of Responses. A Party who has
responded to a request for discovery with a response that was complete when
made is under no duty to supplement his response to include information
subsequently acquired, except as follows:
(a)
A Party is under a duty seasonably to supplement his response with respect to
any question directly addressed to:
1. the
identity and location of persons having knowledge of discoverable matters;
and
2. the identity of each person
expected to be called as an expert witness at trial, the subject matter on
which he is expected to testify, and the substance of his testimony.
(b) A Party is under a duty
seasonably to amend a prior response if he obtains information upon the basis
of which:
1. he knows that the response was
incorrect when made; or
2. he knows
that the response though correct when made is no longer true and the
circumstances are such that a failure to amend the response is in substance a
knowing concealment.
(c)
A duty to supplement responses may be imposed by order of the Presiding
Officer, agreement of the Parties, or at any time prior to a hearing on the
merits through new requests for supplementation of prior responses.
(9)
Failure to Make
Discovery: Sanctions.
(a)
Motion to Compel Discovery. A Party may move for an
order compelling discovery if a deponent fails to answer a question propounded
in a deposition, if a Party fails to answer an interrogatory, or if a Party
fails to allow the inspection of documents or things as requested. The
discovering Party may move for an order compelling an answer or a designation
of an order compelling inspection in accordance with the request. For purposes
of 360 CMR 1.22(9), an evasive or incomplete answer is to be treated as a
failure to answer.
(b)
Failure to Comply with an Order. If a Party fails to
obey an order to provide or permit discovery, the Presiding Officer may make
such order in regard to the failure as are just, including:
1. An order that the matters regarding which
the order was made or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the claim of the
Party obtaining the order;
2. An
order refusing to allow the disobedient Party to support or oppose designated
claims or defenses, or prohibiting him from introducing designated matters in
evidence; or
3. An order striking a
pleading or part thereof, or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any part thereof, or
rendering a decision by default against the disobedient Party. Such decision
shall be in writing and comply with the provisions of
360 CMR
1.26(1)(c).
(10)
Failure
of Party to Attend his Own Deposition or Serve Answers to Interrogatories or
Respond to Request for Inspection or Entry Upon Land. If a Party
willfully fails:
(a) to appear before the
officer who is to take his deposition, after being served with a proper notice;
or
(b) to serve answers or
objections to interrogatories, after proper service of the interrogatories;
or
(c) to serve a written response
to a request for inspection or entry upon land after proper service of the
request.
The Presiding Officer may make such orders in regard to the
failure as are just, and among others it may take any action authorized under
360 CMR 1.22(9)(b).
In lieu of any order or in addition thereto, the Presiding
Officer may require the Party failing to act or the attorney advising him or
both to pay the reasonable expenses, including attorney's fees, caused by the
failure. In lieu of any of the foregoing orders or in addition thereto, the
Presiding Officer may require the Party failing to obey the order or the
attorney advising him or both to pay the reasonable expenses, including
attorney's fees, caused by the failure.
