804 C.M.R. 1.10 – Discovery

(1) When Allowed. Discovery may only be conducted pursuant to a discovery order from the Commission. Discovery orders may issue if a matter does not resolve at conciliation conducted pursuant to 804 CMR 1.09.
(2) Contents of Discovery Order. A discovery order shall set forth the time period in which all discovery shall be completed. Permitted discovery may include, but is not limited to, interrogatories to parties, requests for the production of documents and other tangible things, depositions, subpoenas issued subject to 804 CMR 1.14, requests for site examination, and requests for admissions.
(3) Scope of Discovery. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter in the complaint, 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 existence, description, nature, custody, condition and location of any documents or tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought shall be inadmissible at a public hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(4) Interrogatories.
1. (a) No party shall serve upon any other party as of right more than 30 interrogatories, including interrogatories subsidiary or incidental to, or dependent upon, other interrogatories, however grouped or combined; but the interrogatories may be served in two or more sets, as long as the total number of interrogatories served does not exceed 30. All interrogatories shall be numbered consecutively.
2. (b) Each interrogatory shall be answered separately and fully in writing under the pains and penalties of perjury, unless it is specifically objected to, in which event the reasons for objection shall be stated in lieu of the answer; each answer or objection shall be preceded by the interrogatory to which it responds. 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:
  1. 1. Notwithstanding the objection no information has been withheld from the answer, or
  2. 2. 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.
3. (c) The answers are to be signed by the person making them under the pains and penalties of perjury, the objections by the person or attorney making them.
4. (d) The party upon whom the interrogatories have been served shall serve answers and objections, if any, within 45 days after the service of the interrogatories.
(5) Requests for Production or Inspection of Documents and Other Tangible Things.
1. (a) The party upon whom the request is served shall serve a written response and copies of the responsive documents within 30 days after the service of the request. The response shall state, with respect to each item or category, that inspection and related activities shall be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified.
2. (b) Unless otherwise stipulated or ordered by the Commission:
  1. 1. A party shall produce documents as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request;
  2. 2. The producing party may produce copies of the documents, including by electronic means, provided that, if requested, the producing party affords all parties a fair opportunity to verify the copies by comparison with the originals;
  3. 3. If a request does not specify a form for producing electronically stored information, a party shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
  4. 4. A party need not produce the same electronically stored information in more than one form.
3. (c) The written response accompanying production shall state either:
  1. 1. All responsive documents or things in the possession, custody, or control of the responding party have been produced;
  2. 2. After diligent search no responsive documents or things are in the possession, custody, or control of the responding party; or
  3. 3. A specific objection made to the request. When specific objection is made, the response shall describe the nature of all responsive documents or things in the possession, custody, or control of the responding party that have not been produced because of the objection.
(6) Depositions.
1. (a) A party desiring to take the deposition of any person upon oral examination shall include in the notice the time and place for taking the deposition, the name and address of each person to be examined and the manner in which the deposition shall be recorded.
2. (b) The notice of deposition shall be served at least 14 days prior to the date of the deposition, and the parties shall receive the same notice for third-party depositions.
3. (c) The parties shall be given 14 days' notice, and an opportunity to quash, prior to the service of a third-party subpoena.
4. (d) A party may name as a deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. The named organization shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which they shall testify. The
persons so designated shall testify as to matters known or reasonably available to the organization. If the corporation, partnership or association does business in Massachusetts, it must produce its designee(s) for deposition in Massachusetts. (e) If a subpoena duces tecum is to be served on a person to be examined, the designation of the material to be produced as set forth in the subpoena, shall be attached to the notice. (f) The party requesting a deposition shall make all necessary arrangements for the taking and recording of depositions, including the cost thereof. (g) The testimony at a deposition may be recorded by other than stenographic means. The party conducting the deposition shall ensure that the recorded testimony is accurate and trustworthy. (h) All objections made at the time of the deposition shall be noted by the person taking the deposition. Evidence objected to shall be taken subject to the objection. Counsel for a witness or a party may not instruct a deponent not to answer except where necessary to assert or preserve a privilege or protection against disclosure, to enforce a limitation on evidence directed by the Commission or stipulated in writing by the parties, or to suspend the deposition for the purpose of bringing a motion to terminate or limit the examination where it is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party. (i) Subject to valid objections to admissibility, depositions or any part thereof may be used for any purpose with respect to witnesses who are unavailable at the hearing or to contradict or impeach the credibility of witnesses who testify at public hearing. (j) The Commission may order the filing of any deposition transcript with the Commission.
(7) Admissions.
1. (a) A party may serve upon another party a written request for admission of the truth of matters within the scope of discovery that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents attached to the request.
2. (b) Each matter of which an admission is requested shall be separately set forth and is deemed admitted unless within 30 days after its service, the party to whom the request is directed serves upon the party requesting the admission:
  1. 1. A written statement signed by the party under the pains and penalties of perjury denying the matter or setting forth in detail why it cannot truthfully admit or deny it; or
  2. 2. A written objection addressed to the matter, signed by the party or representative. If an objection is made, the reasons shall be stated.
3. (c) When good faith requires that a party qualify the answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. A party may not give lack of information or knowledge as a reason for failure to admit or deny the request unless the party states that it has made reasonable inquiry and the information known or readily obtainable by such party is insufficient to enable the party to admit or deny. Each response shall be preceded by the request to which it responds. Any admission made is for the purpose of the pending case only and is not an admission for any other purpose nor may it be used in any other proceeding. The maximum number of admissions as of right shall be 50.
(8) Protective Orders. Upon motion by a party or by a person from whom discovery is sought, and for good cause shown, the Commission may issue a protective order limiting discovery as justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. If the motion for a protective order is denied, the Commission may order that any party shall comply with the discovery requests.
(9) Failure to Comply with Discovery. Failure to comply with discovery may result in any of the following orders from the Commission sua sponte or upon motion from a party:
1. (a) An order to comply with discovery containing consequences for further noncompliance;
2. (b) An order that matters upon which discovery is sought or any other designated facts shall be taken to be established for the purpose of supporting a claim or defense of the party seeking discovery;
3. (c) An order refusing to allow the noncomplying party to support or oppose designated claims or defenses, or prohibiting them from introducing designated matters in evidence;
4. (d) An order prohibiting a party from calling witnesses or introducing documents at the public hearing;
5. (e) An order dismissing the action or immediate certification to public hearing pursuant to 804 CMR 1.11; and
6. (f) an order requiring the noncomplying party or the attorney advising the noncomplying party or both to pay monetary sanctions and reasonable expenses, including attorney fees and Commission expenses caused by the noncompliance, in accordance with 804 CMR 1.22.
(10) Stipulations Regarding Discovery Procedure. Unless the Commission orders otherwise, after the issuance of a discovery order pursuant to 804 CMR 1.10(1), the parties may by written stipulation and agreement modify the procedures provided by 804 CMR 1.10(4) through (7).