Product Description

Recent updates:

• Update: March 2024

  Dear Subscriber:

  Thank you for expanding your library with the 2024 edition of Massachusetts Discovery Practice . This new edition brings updated resources within your immediate reach—for fast, accurate, and practical answers to your questions.

  Highlights from the many topics addressed in this edition include the following:

  • Physical or mental examination. See chapter 1 for updated information concerning a less frequently used discovery tool, Rule 35, the purpose of which is to provide a defendant with an equal opportunity to evaluate any injuries the defendant is alleged to have caused. The chapter references a 2022 case and a 2023 amendment to the rule.

  • Rule 30 depositions upon oral examination. See chapter 2 for a discussion of procedure relative to parties’ intent to take an audiovisual deposition of a treating physician or expert witness for trial, and the notice requirement therefor.

  • Remote depositions. See chapter 3 for a discussion of the Supreme Judicial Court's consideration of proposed amendments to Mass. R. Civ. P. 30 to address the issue of remote depositions, such as would revert to prepandemic practices.

  • Corporate versus individual liability. Chapter 5 offers insights regarding the so-called Yates Guidance and its requirements with regard to corporations' disclosures of facts regarding individuals responsible for misconduct. The chapter discusses the 2022 Monaco Memorandum, which underscores the timeliness of disclosures.

  We trust you will find this latest edition of Massachusetts Discovery Practice an invaluable resource for your busy practice and a useful addition to your law library.

  Cordially,

  MCLE Press

Table of Contents

Chapter 01 expand

An Introduction to Massachusetts Discovery Practice

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Mackenzie C. McBurney, Hinckley Allen LLP
Michelle R. Peirce, Esq., Hinckley Allen & Snyder LLP

Chapter 02 expand

Analyzing Discovery and Investigation Issues

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Michael G. Bongiorno, Esq., Wilmer Cutler Pickering Hale and Dorr LLP
Benjamin Conery, Esq., Wilmer Cutler Pickering Hale and Dorr LLP

Checklist 2.1

- Checklist of Initial Questions to Ask in Identifying Employees Responsible for the Subject Transaction Buy Form

Chapter 03 expand

Creating a Discovery Plan

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Stephen C. Reilly, Esq., Fitch Law Partners LLP

Exhibit 3A

- Sample Keeper-of-the-Records Subpoena Buy Form

Exhibit 3B

- Sample Superior Court Rule 13 Order Buy Form

Exhibit 3C

- Sample Release Prior to Inspection Buy Form

Exhibit 3D

- Sample Letter Confirming Discovery Agreement Buy Form

Exhibit 3E

- Sample Motion to Amend Tracking Order Buy Form

Chapter 04 expand

Selected Case Investigation Techniques

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Brian M. Casaceli, Esq., Mirick, O'Connell, DeMallie & Lougee LLP
Danielle Kemp, Mirick, O'Connell, DeMallie & Lougee LLP

Checklist 4.1

- Investigation Game Plan Buy Form

Checklist 4.2

- Client Meeting Agenda Buy Form

Checklist 4.3

- Outline of Client Interview Buy Form

Checklist 4.4

- Checklist for Client Interview Buy Form

Exhibit 4A

- Initial Chronology Buy Form

Exhibit 4B

- Updated Chronology Buy Form

Exhibit 4C

- Litigation Chronology Buy Form

Exhibit 4D

- Joint Representation Agreement Buy Form

Chapter 05 expand

Conducting Internal Investigations

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Ara B. Gershengorn, Esq., Office of General Counsel, Harvard University

Checklist 5.1

- Sample Investigation Checklist Buy Form

Exhibit 5A

- Sample Joint Defense Agreement Buy Form

Chapter 06 expand

Obtaining Information from Government Sources

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Michael E. Brangwynne, Esq., Fletcher Tilton, PC
Anthony Moroso, Fletcher Tilton, PC
Damon M. Seligson, Esq., DiNicola, Seligson & Upton LLP
Andrew F. Upton, Esq., Upton Connell & Devlin, LLP

Exhibit 6A

- Public Records Request Buy Form

Chapter 07 expand

Using the Internet in Discovery and Investigation

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Amanda Bailey, KPMG LLP
Domenic Paolini, Esq., Paolini & Haley

Chapter 08 expand

Preservation and Spoliation of Evidence

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Mark J. Hoover, Esq., Pierce Davis & Perritano LLP

Exhibit 8A

- Sample Memorandum of Law in Support of Motion to Exclude Evidence Buy Form

Exhibit 8B

- Sample Motion to Limit the Testimony of Plaintiffs’ Expert Buy Form

Chapter 09 expand

Protecting Confidential Information Before and During Discovery

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Jamie N. Dalton, Esq., Morse
John J. Tumilty, Esq., Morse
Paige Zacharakis, Esq., Morse, Barnes-Brown & Pendleton, PC

Exhibit 9A

- Sample Confidentiality Order (One-Tier) Buy Form

Exhibit 9B

- Sample Confidentiality Order (Two-Tier) Buy Form

Exhibit 9C

- Assent to Be Bound by Confidentiality Order Buy Form

Chapter 10 expand

Interrogatories

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Andrea L. Davulis, Esq., McCormack Suny LLC

Exhibit 10A

- Sample Final Request for Answers Pursuant to Mass. R. Civ. P. 33(a)(3) Buy Form

Exhibit 10B

- Sample Application for Entry of Final Judgment Pursuant to Mass. R. Civ. P. 33(a)(4) Buy Form

Exhibit 10C

- Sample Affidavit in Support of Application for Final Judgment Pursuant to Mass. R. Civ. P. 33(a)(4) Buy Form

Exhibit 10D

- Sample Interrogatories in Products Liability Case Buy Form

Exhibit 10E

- Sample Interrogatories in Medical Malpractice Case Buy Form

Exhibit 10F

- Sample Interrogatories in Employment Discrimination Case Buy Form

Chapter 11 expand

Requests for Documents and Things and for Entry upon Land

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Tyler E. Chapman, Esq., Todd & Weld LLP
Michael F. Connolly, Esq., Rubin and Rudman LLP
A. W. Phinney, III, Esq., Supreme Judicial Court, Commonwealth of Massachusetts

Exhibit 11A

- Sample Requests for Production of Documents Buy Form

Exhibit 11B

- Sample Response to Requests for Production of Documents Buy Form

Exhibit 11C

- Bibliography Buy Form

Chapter 12 expand

Organizing Documents Identified During Discovery in Complex Cases

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Michelle Treadwell Briggs, Esq., Goodwin Procter LLP
Danielle M. Panetta, Esq., Goodwin Procter LLP

Checklist 12.1

- Checklist for Developing a Names Directory Buy Form

Checklist 12.2

- Checklist of Fields to Include in Document Databases Buy Form

Exhibit 12A

- Sample Data Entry Form Buy Form

Exhibit 12B

- Sample Display of Fields on Computer Screen Buy Form

Exhibit 12C

- Sample Privilege Log Buy Form

Exhibit 12D

- Sample Deposition Summary Form Buy Form

Chapter 13 expand

Depositions

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Joseph Rutkowski, Esq., Mintz Levin Cohn Ferris Glovsky and Popeo, PC
Adam P. Samansky, Esq., Mintz Levin Cohn Ferris Glovsky and Popeo, PC

Checklist 13.1

- Checklist for Taking an Effective Deposition Buy Form

Exhibit 13A

- Notice of Deposition Pursuant to Rule 30(b)(6) (Sample No. 1) Buy Form

Exhibit 13B

- Notice of Deposition Pursuant to Rule 30(b)(6) (Sample No. 2) Buy Form

Exhibit 13C

- Sample Notice for Deposition of Individual Buy Form

Exhibit 13D

- Advice for a Witness Prior to a Deposition Buy Form

Chapter 14 expand

Physical and Mental Examinations

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Samuel M. Furgang, Esq., Office of the Attorney General, Commonwealth of Massachusetts

Exhibit 14A

- Motion for Independent Medical Examination Buy Form

Exhibit 14B

- Memorandum in Support of Motion for Independent Medical Examination Buy Form

Exhibit 14C

- Motion for Independent Mental Examination Buy Form

Exhibit 14D

- Memorandum in Support of Motion for Independent Mental Examination Buy Form

Exhibit 14E

- Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Neurological Examination Buy Form

Exhibit 14F

- Opposition to Motion to Conduct Rule 35 Examination and to Obtain Medical and Employment Records from Plaintiff Buy Form

Chapter 15 expand

Requests for Admission

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John Gallagher, Esq., Global Partners LP
Kevin J. O'Connor, Esq., ChemGenes Corporation

Exhibit 15A

- Sample Requests for Admissions Buy Form

Exhibit 15B

- Sample Responses to Requests for Admissions Buy Form

Exhibit 15C

- Sample Motion to Determine Sufficiency of Responses and to Deem Matters Admitted Buy Form

Exhibit 15D

- Sample Motion to Withdraw and Amend Responses Buy Form

Exhibit 15E

- Sample Motion for Expenses for Failure to Admit Buy Form

Exhibit 15F

- Sample Declaration of Counsel in Support of Motion for Expenses for Failure to Admit Buy Form

Exhibit 15G

- Bibliography Buy Form

Chapter 16 expand

Evidentiary Privileges

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William Eugene Evans, Esq., Goodwin Procter LLP

Chapter 17 expand

Attorney-Client Privilege and the Work Product Doctrine

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J. Allen Holland, Jr., Esq., Rich May, PC
Christopher M. Hynes, Esq., Rich May, PC

Checklist 17.1

- Attorney-Client Privilege Checklist Buy Form

Checklist 17.2

- Checklist for Application of the Attorney-Client Privilege to Corporate Agents Buy Form

Checklist 17.3

- Checklist for Application of the Attorney-Client Privilege Within a Law Firm Buy Form

Checklist 17.4

- Checklist Regarding Waiver of the Attorney-Client Privilege Buy Form

Checklist 17.5

- Checklist Regarding Inadvertent Disclosures and the Attorney-Client Privilege Buy Form

Checklist 17.6

- Checklist of Conditions for Overcoming the Work Product Doctrine Buy Form

Checklist 17.7

- Checklist of Components of a Privilege Log Buy Form

Chapter 18 expand

Discovery from Out-of-State and Foreign Nonparty Witnesses

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Joshua W. Gardner, Esq., Gardner & Rosenberg PC
Nicholas J. Rosenberg, Esq., Gardner & Rosenberg PC

Exhibit 18A

- Motion for Letters Rogatory and Associated Papers Buy Form

Exhibit 18B

- Request for Appointment of Commission Buy Form

Exhibit 18C

- Proposed Order for Appointment of Commission Buy Form

Exhibit 18D

- Application for Issuance of Request for the Examination of Witness Pursuant to the Hague Convention for the Taking of Evidence Abroad Buy Form

Exhibit 18E

- Request for International Judicial Assistance Pursuant to the Hague Convention Buy Form

Exhibit 18F

- Sample Cover Letter Buy Form

Exhibit 18G

- Originating Motion and Associated Papers for Filing with Australian Court Buy Form

Exhibit 18H

- Bibliography Buy Form

Chapter 19 expand

Discovery Motions and Appeals

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James P. Hoban, Esq., Mirick, O'Connell, DeMallie & Lougee LLP

Exhibit 19A

- Request for Final Answers to Interrogatories Buy Form

Exhibit 19AA

- Motion for Leave to Take the Deposition of Defendant’s Expert Witness Buy Form

Exhibit 19B

- Plaintiff’s Motion to Compel Responses to Request for Production (No Response) Buy Form

Exhibit 19BB

- Motion to Strike Plaintiff’s Supplemental Interrogatory Answer and for an Order Precluding Plaintiff from Offering Expert Testimony on Damages at Trial Buy Form

Exhibit 19C

- Application for Entry of Final Judgment for Relief or Dismissal Buy Form

Exhibit 19CC

- Opposition to Motion for Leave to Depose Expert Witness Buy Form

Exhibit 19D

- Affidavit Pursuant to Mass. R. Civ. P. 33(a)(4) in Support of Application for Final Judgment for Relief or Dismissal Buy Form

Exhibit 19DD

- Motion to Strike Emergency Motion for Issuance of Letter Rogatory Buy Form

Exhibit 19E

- Motion to Compel Answers to Interrogatories (No Response Received) Buy Form

Exhibit 19EE

- Motion to Compel Plaintiff to Submit to Physical Examination Pursuant to Mass. R. Civ. P. 35(a) Buy Form

Exhibit 19F

- Plaintiff’s Motion to Compel Nonparty Witness to Comply with Subpoena Duces Tecum and for Costs Buy Form

Exhibit 19FF

- Motion to Compel Defendant to Permit Entry upon Land to Conduct Inspection Buy Form

Exhibit 19G

- Plaintiff’s Motion to Compel Nonparty Witness to Comply with Deposition Subpoena and for Costs Buy Form

Exhibit 19GG

- Joint Opposition of Defendant and Nonparty Expert Witness to Plaintiff’s Motion to Compel Production of Documents Buy Form

Exhibit 19H

- Plaintiff’s Motion for Issuance of a Letter Rogatory to Out-of-State Court Buy Form

Exhibit 19HH

- Opposition to Motion to Compel Entry upon Land and Request for Protective Order Buy Form

Exhibit 19I

- Plaintiff’s Motion to Compel Compliance with Deposition Subpoena to Keeper of Records Buy Form

Exhibit 19II

- Motion to Quash Deposition Subpoena of Massachusetts Department of Environmental Protection Employee Buy Form

Exhibit 19J

- Plaintiff’s Motion to Compel Compliance with Renotice of Deposition Pursuant to Mass. R. Civ. P. 30(b)(6) Buy Form

Exhibit 19JJ

- Petition to the Single Justice for Reversal of Order Permitting Subpoena of Mental Health Records Buy Form

Exhibit 19K

- Affidavit of Compliance with Superior Court Rule 9C Buy Form

Exhibit 19KK

- Memorandum in Support of Petition to the Single Justice Buy Form

Exhibit 19L

- Affidavit of Compliance Pursuant to Superior Court Rule 9A Buy Form

Exhibit 19LL

- Emergency Motion to Superior Court for Stay to Permit Interlocutory Review by Single Justice Buy Form

Exhibit 19M

- List of Documents Pursuant to Superior Court Rule 9A Buy Form

Exhibit 19MM

- Motion to Single Justice to Stay Lower Court’s Order Pending Resolution of Petition to the Single Justice Buy Form

Exhibit 19N

- Defendant’s Motion to Compel Further Response to Request for Production of Documents Buy Form

Exhibit 19NN

- Motion of Nonparty Witness for Reconsideration on Plaintiff’s Motion to Compel Production of Documents Buy Form

Exhibit 19O

- Motion to Quash Deposition Subpoena Buy Form

Exhibit 19OO

- Opposition to Motion to Compel Third-Party Defendant’s Deposition Buy Form

Exhibit 19P

- Application for Inspection of Hospital Records Buy Form

Exhibit 19PP

- Motion for Protective Order (in Absence of Factual Basis for Claim) Buy Form

Exhibit 19Q

- Order Requiring Hospital to Produce Medical Records Buy Form

Exhibit 19QQ

- Motion to Test Sufficiency of Responses to Request for Admissions Buy Form

Exhibit 19R

- Affidavit of Notice of Intent to Apply for Medical Records Buy Form

Exhibit 19RR

- Standing Order Concerning Petitions to the Single Justice Buy Form

Exhibit 19S

- Motion to Compel Execution of Social Security Administration Consent for Release of Information Buy Form

Exhibit 19T

- Motion to Compel Keeper of Records to Comply with Subpoena Duces Tecum Buy Form

Exhibit 19U

- Order Finding Waiver of Privilege and Compelling Compliance with Subpoena Duces Tecum Buy Form

Exhibit 19V

- Motion to Quash Subpoena Duces Tecum Served on Defendant’s Treating Psychiatrist and for Protective Order Buy Form

Exhibit 19W

- Motion for Criminal Offender Record Information, Conviction Data, Arrest Reports, and Probation Records Buy Form

Exhibit 19X

- Order for Inspection and Copying of Criminal Record Information, Conviction Data, Arrest Reports, and Probation Records Buy Form

Exhibit 19Y

- Affidavit of Counsel Supporting Request for Criminal Offender Record Information Buy Form

Exhibit 19Z

- Motion to Compel Production of the Medical Records of the Plaintiff’s Decedent Buy Form

Chapter 20 expand

Electronic Discovery

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James Fullmer, Esq.,
Matthew E. Miller, Esq., Foley Hoag LLP

Exhibit 20A

- Electronic Discovery Reference Model Buy Form

Exhibit 20B

- Sample Electronic Discovery Outline for Preparing or Deposing a Business Witness Buy Form

Exhibit 20C

- Sample Questionnaire for Interviewing Client Technology Personnel Buy Form

Exhibit 20D

- Sample Notices (Formal and Basic) Buy Form

Exhibit 20E

- Sample Preservation Letter Buy Form

Exhibit 20F

- Model Order Regarding Preservation Buy Form

Chapter 21 expand

An Overview of Differences Between State and Federal Discovery Practice

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David A. Rich, Esq., Office of the Attorney General, Commonwealth of Massachusetts

Chapter 22 expand

Discovery Relating to Experts

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Laura R. Studen, Esq., Burns & Levinson LLP
Christopher Wurster, Esq., Burns & Levinson LLP

Exhibit 22A

- Sample Interrogatories Buy Form

Exhibit 22B

- Products Liability Deposition Outline Buy Form

Exhibit 22C

- Expert Deposition Outline Buy Form

Exhibit 22D

- Physician Expert Deposition Outline for Mental Capacity Buy Form

Exhibit 22E

- Outline for Treating Mental Health Clinician Qualified as Expert Buy Form

Chapter 23 expand

Discovery in Alternative Forums: Labor and Employment Cases

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James W. Bucking, Esq., Foley Hoag LLP
Christopher S. Feudo, Esq., Foley Hoag LLP
Laura D. Gradel, Esq., Foley Hoag LLP

Exhibit 23A

- MCAD Postdetermination Discovery Order Buy Form

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