Massachusetts Motion to Compel

Introduction

Key Things to Know

1. 1

   Massachusetts splits this into two documents, and the second one does the work. The filing is an application for an order compelling discovery under Mass. R. Civ. P. 37(a), reaching a deponent who will not answer under Rules 30 or 31, an entity that will not make a Rule 30(b)(6) or 31(a) designation, a party that will not answer an interrogatory under Rule 33, and a party that will not permit inspection as requested under Rule 34. Rule 37(a)(3) adds that an evasive or incomplete answer is to be treated as a failure to answer. Then Superior Court Rule 9C(c) requires a brief, item by item, in a fixed order.

2. 2

   Get the Rule 9C(a) certificate right or the motion goes nowhere. The rule requires counsel for each party to confer in advance of filing, by telephone or in person, puts the duty to start that conversation on the moving party's counsel, and requires a certificate stating that the conference was held with the date, the time and the names of all participating parties. There is an alternative for an opponent who will not engage: the certificate may instead state that the conference was not held despite reasonable efforts by the moving party, setting out the efforts made to speak by telephone or in person with opposing counsel. The rule then states the consequence in terms, and it is automatic rather than discretionary: motions unaccompanied by such certificate will be denied without prejudice to renew when accompanied by the required certificate.

3. 3

   The expense award is permissive both ways, and Massachusetts chose that on purpose. Mass. R. Civ. P. 37(a)(4) provides that on a granted motion the court may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. The denied limb is the mirror image and equally permissive. The rule's own 1994 Reporter's Notes record that the denied paragraph used to say shall, that the companion Federal Rule uses shall in both paragraphs, and that the Standing Advisory Committee believed may makes more sense.

4. 4

   If your opponent is the Commonwealth, the money question has a different answer. Rule 37(e) provides that except to the extent permitted by statute, expenses and fees may not be awarded against the Commonwealth under the rule. So the whole expense regime switches off, and a motion against a Commonwealth agency is worth bringing for the order rather than for the costs. Note the other downside risk, written into the compel rule itself: Rule 37(a)(2) provides that if the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion under Rule 26(c).

5. 5

   Count 45 days on interrogatories, not 30. Mass. R. Civ. P. 33(a)(3) requires answers and objections within 45 days after service of the interrogatories, while Rule 34(b)(2)(A) and Rule 36(a) run on 30 days from service of the request, with a 45-day floor for a defendant measured from service of the summons and complaint. The clock people miss most is the one after the order: unless otherwise specified, further answers to interrogatories shall be served within 30 days of the entry of the order to answer further. Rule 33(a)(5) adds that the pendency of a motion to extend any of these times does not stay the entry of any judgment unless the motion is assented to or heard within 30 days of filing.

6. 6

   For unanswered interrogatories Massachusetts offers something faster and harsher than a motion. Rule 33(a)(3) gives the interrogating party an express choice: move under Rule 37(a), or serve a final request for answers specifying the failure and stating that the party may apply for final judgment for relief or dismissal. The responding party then has 30 days from service of the final request, or until the application is filed, whichever is later. After 40 days from service of the final request, a period Rule 33(a)(4) says is deemed to include the three days allowed by Rule 6(d), the interrogating party files a written application with a copy of the final request and an affidavit reciting five specified facts, and under Rule 33(a)(6) the clerk shall enter an appropriate judgment. Superior Court Rule 30 prescribes what the application must additionally contain and requires it to be verified.

7. 7

   Your case is on a track, and the track sets the discovery dates. Superior Court Standing Order 1-88 assigns every Superior Court civil action to a Fast, Average or Accelerated track by case type, with the plaintiff indicating the track on the Civil Action Cover Sheet and the clerk issuing a tracking order carrying specific dates. On the Fast track, all discovery requests shall be served and non-expert depositions completed within ten months, being 300 days from the filing of the complaint; on the Average track, within twenty-four months, being 720 days. Requests for admission sit outside that deadline, but after it a party may not request of an adverse party the admission of more than thirty factual assertions except with leave of court. Superior Court Rule 9F prescribes what a motion to amend the tracking order to permit additional discovery must identify.

Massachusetts Requirements for Motion to Compel

• The Rule 9C(c) Brief, Built Item by Item in the Prescribed Order

  Superior Court Rule 9C(c) requires a brief with every motion arising out of a party's response to an interrogatory or a request for admission, or out of a response to or asserted failure to comply with a request for production. For each item at issue the brief shall set forth separately and in this order the text of the interrogatory or request, the opponent's response, and an argument. The text and the response may instead go in an appendix provided the brief still includes an argument addressed to each item, and no argument may be included in the appendix. Decide which items you are pressing before you draft, because every one needs its own argument.

• The Rule 9C(a) Certificate, in One of Its Two Permitted Forms

  Superior Court Rule 9C(a) requires counsel for each of the parties to confer in advance of filing any motion, by telephone or in person, with counsel for the party intending to serve the motion responsible for initiating it. The certificate must state either that the conference was held, with the date and time and the names of all participating parties, or that it was not held despite reasonable efforts by the moving party, setting forth the efforts made to speak by telephone or in person with opposing counsel. The rule states the consequence of omission: motions unaccompanied by such certificate will be denied without prejudice to renew when accompanied by the required certificate.

• Which Subdivision of Rule 37(a) Covers What You Served

  Mass. R. Civ. P. 37(a)(2) reaches a deponent who fails to answer under Rules 30 or 31, an entity that fails to make a Rule 30(b)(6) or 31(a) designation, a party that fails to answer an interrogatory under Rule 33, and a party that fails to respond that inspection will be permitted or fails to permit it under Rule 34. Rule 37(a)(3) provides that an evasive or incomplete answer is to be treated as a failure to answer. Rule 36 requests for admission are not in that list, and Rule 36(a) supplies a motion to determine the sufficiency of the answers or objections. Rule 37(a)(1) sends an application against a non-party deponent to the court in the county or judicial district where the deposition is being taken.

• Proof the Forty Five or Thirty Day Period Had Run

  State the computation. Mass. R. Civ. P. 33(a)(3) gives 45 days after service of the interrogatories, and the court may on motion with or without notice specify a shorter or longer time. Rule 34(b)(2)(A) gives 30 days after service of a production request, with 45 days for a defendant measured from service of the summons and complaint, and Rule 36(a) gives 30 days on a request for admission with the same 45-day floor for a defendant. Counting thirty days on interrogatories would make the motion fifteen days premature. If the order is granted, note the follow-on clock: unless otherwise specified, further answers shall be served within 30 days of the entry of the order to answer further.

• Whether the Rule 33 Final Request Route Is Better Than the Motion

  Where nothing at all was served in answer to interrogatories, Rule 33(a)(3) gives an express alternative to a Rule 37(a) motion: serve a final request for answers specifying the failure and stating that the interrogating party may apply for final judgment for relief or dismissal. After 40 days from service of that final request, Rule 33(a)(4) allows a written application accompanied by a copy of the final request and an affidavit reciting five specified facts, and Rule 33(a)(6) directs that the clerk shall enter an appropriate judgment. Superior Court Rule 30 requires the application to show the service date and compliance with the rules, and to be verified by affidavit. Decide which track you are on before drafting anything.

• Your Interrogatory Count and the One Year Service Window

  Mass. R. Civ. P. 33(a)(2) allows no more than thirty interrogatories as of right, including interrogatories subsidiary or incidental to or dependent upon others however grouped or combined, with the total across all sets capped at thirty and all interrogatories numbered consecutively. More requires a court order for good cause shown or the interrogated party's agreement under Rule 29. Superior Court Rule 30 adds that interrogatories may be served within one year after the entry of an action or within such further time as the court may allow. Answers beyond the thirtieth, or to interrogatories served outside that window without leave, are not answers the rules entitle you to compel.

• Your Track, Your Tracking Order Date, and Rule 9F If It Has Passed

  Superior Court Standing Order 1-88 assigns the case to a Fast, Average or Accelerated track by case type and has the clerk issue a tracking order with specific dates. All discovery requests shall be served and non-expert depositions completed within 300 days of filing on the Fast track and 720 days on the Average track, with requests for admission outside that deadline but limited to thirty further factual assertions after it without leave. The Standing Order's endnote records that motions to compel production of timely-served discovery continue to be appropriate after that date. If you need more discovery, Superior Court Rule 9F requires a motion to amend the tracking order to identify prior enlargements, the discovery done, the discovery remaining, the nature of the claims and anything else relevant.

• The Expense Request Under Rule 37(a)(4), and What Limits It

  Rule 37(a)(4) provides that on a granted motion the court may, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. The verb is may, not shall, on both limbs, and a denied motion exposes the moving party or the attorney advising it to the same permissive award. A split result may be apportioned among the parties and persons in a just manner. Two limits to note: Rule 37(e) bars any award against the Commonwealth except to the extent permitted by statute, and Rule 37(a)(2) lets the court enter a Rule 26(c) protective order if the motion is denied in whole or in part.