Section Review

Superior Court Standing Order 1-09: Assessing and Avoiding Risks in a New Age of Discovery

Effective January 12, 2009, the Massachusetts Superior Court adopted Standing Order 1-09 ("Order 1-09") for written discovery. Order 1-09 states that it is not "intended to broaden or narrow the scope of discovery" permitted under the Rules of Civil Procedure, but rather to promote openness and transparency in the written discovery process. Counsel should take note of Order 1-09 for several reasons.

Written discovery will be more time consuming, the number of disputes overall may increase, and a new type of discovery dispute may emerge

Failure to make carefully considered and well-timed disclosures may result in erosion of the work product protection

Violations of the Order can result in sanctions, such as the preclusion of evidence at trial

Order 1-09 contains the following three subsections: Uniform Definitions in Discovery Requests; Objections to Interrogatories; and Objections to Requests for the Production of Documents and Things. Section one creates nine standard definitions for use in discovery requests and redefines contention interrogatories. However, parties are not precluded from defining terms specific to the litigation or narrowing these standard definitions. Sections two and three expand disclosure requirements for interrogatories and document requests, and eliminate general objections. Although the impact of Order 1-09 will become clearer during the Order's implementation in the coming months and years, litigators must actively adjust their litigation strategies, review their procedures for responding to discovery and supplementing responses, and advise clients of these new disclosure requirements and their ramifications.

Contention Interrogatories Redefined

The definition most likely to spawn confusion and generate discovery disputes concerns the ever-popular contention interrogatory. Consider, for example, an employment dispute in which the defendant asks the following contention interrogatory: State the basis for your claim that the defendant intentionally interfered with your employment contract with Company ABC, Corp. Order 1-09 requires that counsel responding for the plaintiff now provide a "substantial summary" in its answer that:

identifies the essential acts or failures to act that form the basis of the claim or defense;

identifies the individuals or entities who either are in "possession of documents" or who have "firsthand information" regarding the claim or defense; and

identifies the documents (or produces the documents) that form the basis of an allegation or defense.

When plaintiff's counsel drafts a response containing this information, he or she has a duty to protect work product information. However, Order 1-09 requires disclosure of work product information, irrespective of whether it was obtained in anticipation of litigation, "

if the party intends to offer this information at trial." See Section (l)(c)(9)(c).1 Careful thought must go into the timing of decisions to use at trial information that would otherwise be subject to work product protection. A hastily made decision to disclose work product information early in discovery because counsel believes it will be used at trial, could prove damaging if the litigation strategy changes due to the evolving nature of ongoing discovery. On the other hand, if counsel doesn't disclose information timely, he or she risks having critical factual information being excluded at trial. At least in the early stages of discovery, a reservation of right to further supplementation may be prudent. Such decisions, however, must be re-evaluated as discovery unfolds and responses must be supplemented timely.

Prohibition on General Objections to Interrogatories

The most publicized change effected by the adoption of Order 1-09 is the elimination of the general objection. Prior to January 12, 2009, when an objection to an interrogatory was made, the Massachusetts Rules of Civil Procedure required only that the reasons be stated.2 The requirement to create a privilege log, found in Rule 26(b)(5), by definition relates only to documents being withheld.3 As of January 12, 2009, objections to interrogatory requests must be "specific" and accompanied by a statement that either, notwithstanding the objection no information has been withheld, or that counsel has withheld information because of the objection. When information is withheld, Section 2 of Order 1-09 additionally requires the objecting party to "describe the nature of the information withheld."4 The level of detail concerning the "nature" of the information "withheld," and whether counsel must now provide an interrogatory response akin to a privilege log, remains to be decided and will likely require a case-specific analysis. Asserting objections in compliance with this provision, while also protecting privileged and work product information, may prove complex post January 12, 2009.

Assume that you represent a senior level corporate manager. Her former employer (the plaintiff, OldCorp, Inc.) alleges that she and two of her co-workers violated the terms of their non-compete agreement by forming a new entity and wrongfully appropriating OldCorp's clients. Assume further that each co-worker has been sued and is represented by separate counsel. Plaintiff serves you with the following interrogatory:

Identify the name and job title of all individuals with knowledge of the formation of NewCorp, Inc. and state for each all facts known to the individual regarding the circumstances surrounding the formation of NewCorp, Inc.

You draft a response in the context of ongoing discovery where you have not yet determined whether some of the information you have gathered will be offered at trial. You answer the interrogatory by naming three individuals, providing a "substantial summary" of their knowledge, and producing documents relevant to that knowledge. You are certain that this information will be offered at trial.

As part of your investigation, you had interviewed senior managers at many of OldCorp's current and former clients. Some of these clients have joined NewCorp and some have remained with OldCorp. Although most of your interviews had uncovered little more than background information on the relationship between the client and OldCorp, one conversation was particularly illuminating. You spoke with a vice president at LoyalWidget, who recalls a conversation that he had had with one of the co-defendants while the defendants were still employed by OldCorp. He had received a call from this co-defendant telling him about NewCorp, and inquiring whether LoyalWidget would be willing to "jump" to NewCorp when it was formed. While the vice president was friendly with this co-defendant, the vice president indicated that LoyalWidget would remain with OldCorp. The vice president recalled that the conversation had occurred well before NewCorp was formed, and that the call had originated from the offices of OldCorp. Your client claims to have no knowledge of this conversation.

Because the sole source of the information about this conversation comes from

The Plaintiff objects to the above interrogatory to the extent it requires the disclosure of attorney client privilege and work product information. Discovery is ongoing and counsel has not yet determined what, if any, further information responsive to this interrogatory the defendant will offer at trial. The defendant will supplement its answer in accordance with the Massachusetts Rules of Civil Procedure prior to trial.

The nature of your investigation squarely places this information under the umbrella of attorney work product, and you were under no obligation, prior to January 12, 2009, to reveal any aspects of your conversation with LoyalWidget. Moreover, your conversation with your client about this information is privileged.

However, as of January 12, 2009, because you have answered this interrogatory and also made an objection, you are additionally required to either state that there is no responsive information in your file being withheld, or you must "describe the nature" of any information withheld, irrespective of whether you have withheld the information based upon a privilege objection or the work product doctrine. Does Order 1-09 require you to provide the name of LoyalWidget's vice president, along with the date of your conversation and the issues discussed? The names of all of OldCorp's current and former clients and their key employees, including this LoyalWidget vice president, constitute discovery information equally available to both plaintiff and defendant's counsel. Despite this fact, does Order 1-09 require you to catalogue each and every interview and oral communication that you have had with OldCorp's current and former clients during your investigation and to "describe the information" in the form of a privilege log?

If so, such a requirement would naturally cause defendant's counsel concern, because the selection and timing of witness interviews, from the "universe" of available witnesses, arguably constitutes protected work product.5 Requiring opposing counsel to catalogue and disclose each and every conversation with OldCorp's current and former clients will allow an interrogating attorney to see the outline of opposing counsel's protected work product in a manner analogous to a viewing box for a solar eclipse; while you can't see it directly, you can see all of its contours.

Further, in this hypothetical, opposing counsel's client is unaware of the co-defendant's contact with LoyalWidget's vice president. Thus, such a disclosure in this instance would in essence be an interrogation of opposing counsel, not the client who is the proper target of plaintiff's interrogatory request.

Longstanding precedent has emphasized that properly preparing a client's case cannot be accomplished if attorneys are unable to "assemble information, sift what [they] consider[] to be []relevant … prepare [their] legal theories and plan their strategy without undue and needless interference."6 Further, trial judges have recognized that "[i]f the privilege applies to a communication, it applies to the whole communication. The holder of the privilege is not required to disclose 'purely factual' portions of a communication covered by the privilege."7 Requiring responding counsel to "describe" the nature of all information withheld pursuant to a privilege or work product objection to an interrogatory, could improperly allow "intrusions, interferences, or borrowings" by interrogating counsel as the [responding] attorney "prepares for the contest."8

Where protecting privileged or work product information, and in particular opinion work product, is a legitimate concern,9 counsel may consider initially providing only a general description of the nature of the information withheld. For example, counsel for the defendant in this hypothetical could state:

In answering this interrogatory, the Plaintiff has withheld information obtained through interviews and other communications which is protected by the attorney client privilege and/or information that contains or reflects mental impressions, opinions, legal theories, or conclusions of plaintiff's attorneys or agents.

Accordingly, if interrogating counsel moves to compel the names, dates, and further detail relating to witness interviews or other protected information, although responding counsel will have the burden in resisting that discovery, there will be an opportunity to fully present the arguments in favor of protection to the court where a Rule 9C conference fails to resolve the dispute. Otherwise, counsel's "intentional disclosure of presumptively privileged information may []waive the privilege."10

your investigation, not from any personal information offered by your client, prior to the institution of Standing Order 1-09, you might make the following objection and reservation:

Increased Disclosure Requirement and Elimination of General Objections to the Production of Documents

Pursuant to Rule 34 of the Massachusetts Rules of Civil Procedure, a party that objects to a document request must only state the reasons for the objection.11 Section 3 of Order 1-09 will now require counsel who makes general objections to provide a supplemental response "no later than 10 days after the completion of production."12 Section 3(a). Once production is complete, "general objections to requests for production of documents and things are prohibited" and specific objections must be accompanied by a description of the "nature of all responsive documents" being withheld. See Section 3(b).

However, the most significant change is the requirement in Section 3 of Order 1-09 that counsel's initial response to a document request "articulate with clarity the scope of the search conducted or to be conducted" for documents responsive to document requests and, where "all locations" are not searched, to "explain" why these locations have been excluded.13 Section 3, however, provides no definition for the term "location," other than including within its scope "electronic storage locations." At a time when electronic production is of paramount concern to practitioners and their clients, particularly to corporate parties, ambiguity in the definition of "electronic storage locations" is certain to spawn discovery disputes and potentially conflicting court rulings. Does counsel need to declare that the search included - or did not include - the personal laptop, PDA, and hard-drive of the corporate vice-president and every other officer, manager, and supervisor of a defendant corporation? Again, the level of detail required to comply with Section 3 of Order 1-09 is likely to be resolved on a case-by-case basis through discovery disputes presented to the Court over the months and years ahead.

Conclusion

The Court's effort to create a more collaborative discovery process is to be applauded. Counsel however must refine discovery practices and procedures in light of this new standing order and carefully consider the timing and level of detail disclosed in discovery responses.14 Clients must be educated on these updated procedures and additional disclosure requirements. Finally, until there is guidance on the level of detail required, counsel should be prepared to litigate discovery disputes over work product and privileged information where appropriate and necessary.15

 

 

Notes

1. 

(9)

2. 

3. 

4.  Section 2 states:

General objections to interrogatories are prohibited. Each objection to an interrogatory shall be specific to that interrogatory and shall have a good faith basis. If a party refuses to answer an interrogatory, the party shall so state and identify each objection asserted to justify the refusal to answer. If a party, after having asserted an objection, answers the interrogatory, the answer shall state either: (a) notwithstanding the objection no information has been withheld from the answer, or (b) information has been withheld from the answer because of the objection. Where information has been withheld from the answer, the objecting party shall describe the nature of the information withheld and identify each objection asserted to justify the withholding.

5. 

6.  Commonwealth v. Bing Sial Liang, 434 Mass. 131, 138 (2001),

7.  Peter M. Lauriat, et al.,

8.  Ward v. Peabody, 380 Mass. 805, 817 (1980),

9. 

10.  Lauriat,

11.  Mass. R. Civ. P. 34.

12.  Superior Court Standing Order 1-09, § 3(a) (2009)

13.  Section 3(c) states:

In the initial written response, the responding party shall articulate with clarity the scope of the search conducted or to be conducted. If the scope of the search changes during production, the responding party in the supplemental written response shall articulate with clarity the change in scope. If 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.

14.  The ethical ramifications of discovery violations are beyond the scope of this article.

15.  There is no indication in the language of Order 1-09 that the Court intended its reach to apply retroactively to discovery already propounded or to supplemental discovery responses provided after January 12, 2009. Nevertheless, practitioners should be aware of the potential application of Order 1-09 to discovery originally propounded before the effective date of the Order in ongoing cases.

See Superior Court Standing Order 1-09, § 1(c)(9) (2009)(emphasis added). Section 1(c)(9) provides the following definition:State the Basis or State all Facts. When an interrogatory calls upon a party to "state the basis" of or "state all facts" concerning a particular claim, allegation or defense (or uses comparable language), the party shall provide a substantial summary of the factual basis supporting the claim, allegation, or defense at the time the interrogatory is answered. The summary shall: (a) identify the essential acts or failures to act forming the substance of the claim, allegation, or defense, (b) identify the persons and entities that, through firsthand information or possession of documents, are the sources of the party's information regarding the claim, allegation or defense, and (c) when one or more documents is the basis of the claim, allegation, or defense, such as a written contract in a contractual claim or defense, or a written misrepresentation in a misrepresentation claim, identify (or provide as part of the interrogatory a copy of) each such document. In stating the basis, a party may not withhold information from the interrogatory answer because it derives from attorney work product or was obtained in anticipation of litigation if the party intends to offer this information at trial.See Mass. R. Civ. P. 33(a).Id. at 26(b)(5).Cf. Salvas v. Wal-mart Stores, Inc., 17 Mass. L.Rptr. 387 (Mass. Super. 2004)(Brassard, J.)(court concluded that "the selection of a limited number of documents from the much greater universe of documents constitutes work product within the meaning of Rule 26 and Massachusetts case law.").quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947).Discovery 49 Mass. Prac. § 4:3, 345 (2008), see also A.W. Chesterton Co. v. Allstate Ins. Co., 12 Mass. L. Rptr. 550 (Mass. Super. Ct. 2001) (McHugh, J.). see also id. at 364 ("purpose of this [opinion work product] protection is to ensure that attorneys can make candid analyses of cases and reduce unfavorable facts or conclusions to writing.").See Mass. R. Civ. P. 26(b)(3). supra note 7, at 347.

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