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Massachusetts Discovery Practice

Essential tools for pretrial litigation

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  • Product Number: 2020268B00
  • Publication Date: 12/17/2021
  • Edition: 4th Edition 2021
  • Copyright: © 2021 MCLE, Inc.
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  • Product Description
  • Table of Contents
  • Editors & Authors
  • Product Description

    Product Description

    Massachusetts Discovery Practice is the Massachusetts lawyer's essential guide to discovery and investigation in the information age. It addresses important preliminary tasks such as client interviewing and creating a discovery plan as well as such diverse topics as internal investigations, confidential communications, electronic discovery, and foreign witnesses. Practice notes, judicial and ethics commentary, checklists, and sample forms clearly lay out the essential elements, potential pitfalls, and best practices associated with each step of the process. No litigator should be without it!

    Recent updates:

    • Update: December 2022

      Dear Subscriber:

      Thank you for updating your reference library with the 2021 edition of Massachusetts Discovery Practice . This latest version brings updated resources within your immediate reach—for fast, accurate, and practical answers to your questions.

      Highlights from the many issues addressed in this edition include

      • developments in hardware and software affecting lawyers' collection and analysis of information during the discovery process;
      • court orders issued in response to the COVID-19 pandemic and corresponding changes in discovery practice, particularly in relation to depositions;
      • U.S. Department of Justice guidance on the conduct of governmental investigations;
      • a recent Appeals Court case declining to impose sanctions for spoliation of handwritten notes that were destroyed prior to the commencement of litigation and in accordance with the party's customary practice;
      • adoption of the Massachusetts Uniform Trade Secrets Act and continued application of the Defend Trade Secrets Act;
      • guidance on drafting protective orders, including a discussion of "counsel only" provisions;
      • a recent case on the importance of timeliness in responding to claims of inadvertent waiver;
      • expansion of Superior Court Rule 9C to require prefiling conferences for most motions, as well as a prefiling conference requirement adopted for depositions conducted under Fed. R. Civ. P. 30(b)(6);
      • the scope of the attorney-client privilege and the work product doctrine as played out in litigation between the Massachusetts Office of the Attorney General and Facebook, Inc.; and
      • implementation of a new statutory privilege for crisis intervention services.

      We trust you will find this latest version of Massachusetts Discovery Practice an invaluable resource for your busy practice.

      Very truly yours,

      John M. Lawlor, Esq., MCLE Publications Attorney

  • Table of Contents

    Table of Contents

    expand all
    Chapter 1 expand

    An Introduction to Massachusetts Discovery Practice

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    Chapter 2 expand

    Analyzing Discovery and Investigation Issues

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    Checklist 2.1

    - Checklist of Initial Questions to Ask in Identifying Employees Responsible for the Subject Transaction Buy Form
    Chapter 3 expand

    Creating a Discovery Plan

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    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 4 expand

    Selected Case Investigation Techniques

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    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 5 expand

    Conducting Internal Investigations

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    Checklist 5.1

    - Sample Investigation Checklist Buy Form

    Exhibit 5A

    - Sample Joint Defense Agreement Buy Form
    Chapter 6 expand

    Obtaining Information from Government Sources

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    Exhibit 6A

    - Public Records Request Buy Form
    Chapter 7 expand

    Using the Internet in Discovery and Investigation

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    Chapter 8 expand

    Preservation and Spoliation of Evidence

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    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 9 expand

    Protecting Confidential Information Before and During Discovery

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    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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    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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    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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    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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    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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    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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    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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    Chapter 17 expand

    Attorney-Client Privilege and the Work Product Doctrine

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    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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    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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    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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    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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    Chapter 22 expand

    Discovery Relating to Experts

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    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
    Chapter 23 expand

    Discovery in Alternative Forums: Labor and Employment Cases

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    Exhibit 23A

    - MCAD Postdetermination Discovery Order Buy Form
  • Editors & Authors

    Editor(s)

    Judicial Commentator(s)

    Hon. Robert B. Gordon, Superior Court, Commonwealth of Massachusetts, Boston
    Hon. Paul D. Wilson, Middlesex Superior Court, Commonwealth of Massachusetts, Woburn

    Ethical Commentator(s)

    Author(s)

    Andrea L. Davulis, Esq., McCormack Suny LLC, Boston
    Samuel M. Furgang, Esq., Office of the Attorney General, Commonwealth of Massachusetts, Boston
    Ara B. Gershengorn, Esq., Harvard University Office of General Counsel, Cambridge
    Mark J. Hoover, Esq., Pierce Davis & Perritano LLP,
    Kevin J. O'Connor, Esq., ChemGenes Corporation, Boston
    Michelle R. Peirce, Esq., Hinckley Allen & Snyder LLP, Boston
    A. W. Phinney, III, Esq., Supreme Judicial Court, Commonwealth of Massachusetts, Boston
    Andrew F. Upton, Esq., Upton Connell & Devlin, LLP, Boston
    Aaron S. Welo, Esq., Somerville
    Paige Zacharakis, Esq., Morse, Barnes-Brown & Pendleton, PC, WEYMOUTH
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