Discovery

(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.