As of January 1st, 2014, new rules went into effect that change Massachusetts eDiscovery procedure. Lawyers who practice in federal courts won’t see much of a difference, but attorneys who practice primarily in state courts may be in for a shock.
According to Attorney Jonathan Sablone, a Nixon Peabody partner who spoke on the amendments at the 2013 Boston eDiscovery Summit, only vague eDiscovery guidelines for Massachusetts state courts existed prior to the new rules. The Massachusetts Supreme Judicial Court approved the uniform set of rules, which are based on the Federal Rules of Civil Procedure and will apply to all seven MA court systems.
The Reporter’s Notes to the 2014 Amendments explain: “The driving force behind the decision to consider rules for electronic discovery in Massachusetts is the staggering growth of information in electronic form today.”
At the 2013 Boston eDiscovery Summit, Attorney Francis Fox of Bingham McCutchen discussed why the court needed to codify Massachusetts eDiscovery rules. “The perception of discovery shifted around 1970 from the fair-haired child of Lady Justice to a ravenous wolf…Civil litigation may go the way of the horse and buggy if something isn’t done.”
Fox said if the system is to survive, there must be controls put on it. The new rules put a pre-trial emphasis on discovery intended to turn the current atmosphere of combat into one of cooperation.
Judge Frederic Rutberg of the Massachusetts District Court said the new rules are intended to make eDiscovery more manageable, while at the same time preserving the culture of Massachusetts courts.
Early ESI conferences
Massachusetts Rule 26(f) process is driven by attorneys, and assumes cooperation. The Reporter’s Notes state: “Unlike the Federal Rule 26(f), the Massachusetts version…does not require a conference between parties as a matter of course.” However, at any time during the first 90 days after the responsive pleading is filed, either party may request a meeting to develop a discovery plan for ESI (electronically stored information), no later than 30 days after the request is served. The request will be served on all parties, but not with the court. Within 14 days, the parties must file the plan and/or any disagreements with the court.
Topics to be discussed at the 26(f) “meet and confer” session include:
- production format
- production timing
- privilege and confidentiality
- cost allocation
If the parties cannot come to an agreement on their eDiscovery plan, the parties will meet before the judge in a Rule 16 conference. The court has the power to decide timing and extent of discovery, preservation and discovery of ESI, procedures for asserting claims of privilege, and cost allocation. Judge John Carroll, Dean of Cumberland School of Law, remarked that Massachusetts is ahead of the FRCP on Rule 16.
Inaccessible ESI is defined by the new Massachusetts Civil Rules of Procedure as “electronically stored information from sources the party identifies as not reasonably accessible because of undue burden or cost.” If a party claims the ESI is inaccessible, that same party bears the burden of proof. The court may order inaccessible ESI, but also has the power to shift costs to the requesting party.
If the requesting party doesn’t choose the production format, then the responding party may choose. If the first party does request a certain form of ESI, the second party may object, but then the second party must specify a format.
“Know what format you want before going in front of a judge,” Judge Rutberg advised. He said most judges of his vintage are not very knowledgeable about ESI formats. If you’re of the same vintage or simply wondering what format you should choose, read this article on native vs. TIFF.
Familiarize yourself with the new Massachusetts Rules of Civil Procedure. Check out Jonathan Sablone’s helpful book Massachusetts e-Discovery and Evidence 2013 Edition. And remember, WarRoom Document Solutions is here to help with all of your litigation support and eDiscovery needs.