211 CMR 41.17 - Discovery

Current through Register 1466, April 1, 2022

(1) Information Requests.
(a) Subject to any limits on intervention imposed pursuant to 211 CMR 41.14, a Party may serve upon another Party that has submitted a Rate Filing or Responsive Filing, within five days of the filing of that Party's filing, written Information Requests to produce or make available documents or tangible things, not privileged, and not previously supplied, that are in the custody or control of the Party upon whom the request is served. An Information Request must set forth, with reasonable particularity, the items to be provided. With the permission of the Presiding Officer, a Party may serve interrogatories on another Party. The Presiding Officer, in his or her discretion, may permit Information Requests to be served on a Party after the start of the examination of that Party's witnesses and before the conclusion of the Hearing. Discovery must be conducted expeditiously and, except for good cause, will not be grounds to delay the Hearing.
(b) All Information Requests must be filed and served on all Parties. A Party requesting documents from the Division or the State Rating Bureau shall pay the Division the fee per page for copies as determined from time to time by the Executive Office for Administration and Finance, unless the Presiding Officer waives the fee.
(2) Record Requests. Subject to any limits on intervention imposed pursuant to 211 CMR 41.14, a Party may, at the discretion of the Presiding Officer, make oral Record Requests of another Party during testimony or conferences, seeking discovery in the manner permitted for Information Requests in 211 CMR 41.17(1).
(3) Uniform Definitions in Discovery Requests. As used in 211 CMR 41.00, the following words shall mean:
(a) Incorporation by Reference and Limitations. The full text of the definitions set forth in 211 CMR 41.17(3)(c) is deemed incorporated by reference into all Information Requests and Record Requests, but shall not preclude the definition of other terms specific to the particular litigation, the use of abbreviations or a narrower definition of a term defined in 211 CMR 41.17(3)(c).
(b) Effect on Scope of Discovery. 211 CMR 41.17(3) is not intended to broaden or narrow the scope of discovery permitted by 211 CMR 41.00.
(c) Definitions. The following definitions apply to all Information Requests and Record Requests, unless otherwise ordered by the Presiding Officer:
1. Communication. The term "communication" means the transmittal of information (in the form of facts, opinions, ideas, inquiries, or otherwise).
2. Document. The term "document" is defined to be synonymous in meaning and equal in scope to the usage of this term in Mass. R. Civ. P. 34(a). An earlier draft is a separate document within the meaning of this term.
3. Identify (With Respect to Persons). When referring to a natural person, to "identify" means to state, to the extent known, the person's:
a. Full name;
b. Present or last known address; and
c. Present or last known place of employment.

Once a person has been identified in accordance with this subparagraph, only the name of that person need be listed in response to subsequent discovery requesting the identification of that person.

4. Identify (With Respect to Entities). When referring to an entity, to "identify" means to state, to the extent known,
a. The entity's full name, including (when not apparent from the name) the nature of the entity (e.g., corporation, limited liability corporation, partnership, or professional corporation);
b. Present or last known address of its headquarters or principal place of business; and
c. The state in which the entity is incorporated or otherwise created.

Once an entity has been identified in accordance with 211 CMR 41.17(3)(c)4., only the name of that entity need be listed in response to subsequent discovery requesting the identification of that entity.

5. Identify (With Respect to Documents). When referring to documents, to "identify" means to state, to the extent known:
a. The type of document;
b. The general subject matter;
c. The date of the document;
d. The author or authors, according to the document; and
e. The persons to whom, according to the document, the document (or a copy) was to be sent.
6. Parties. The term "Party," as well as a Party's full or abbreviated name or a pronoun referring to a Party, mean the Party and, where applicable, its officers, directors, employees, partners, corporate parent, and subsidiaries. This definition is not intended to impose a discovery obligation on any person who is not a Party to the Proceeding.
7. Person. The term "person" means any natural person or any business, legal, or governmental entity.
8. Concerning. The term "concerning" means referring to, describing, offering evidence of, or constituting.
9. State the Basis or State all Facts. When an Information Request or Record Request calls upon a party to "state the basis" of or "state all facts" concerning a particular matter (or uses comparable language), the Party shall provide a substantial summary of the factual basis supporting the matter at the time of the response to the Request. The summary shall: identify the essential acts or failures to act forming the substance of the matter, identify the persons and entities that, through firsthand information or possession of documents, are the sources of the Party's information regarding the matter, and, when the basis of the matter is one or more documents, identify (or provide as part of the response a copy of) each such document. In stating the basis, a Party may not withhold information from the response because it derives from attorney work product or was obtained in anticipation of litigation if the Party intends to offer this information at the Hearing.
(4) Responses to Discovery.
(a) Answers to Information or Record Requests. Answers to Information Requests or Record Requests must be filed and served upon all Parties no more than five days after receipt of the Request. A Party upon which a discovery Request is served may, within the time period established for response, file objections or move for a protective order with respect to specified portions of the Request, provided that it first has attempted in good faith to resolve the grounds for its objection or motion with the Party seeking discovery. Objections or a motion for a protective order must be served upon all Parties.
(b) Obligation to Attempt to Resolve Discovery Issues. If a Party's Information Request or Record Request is not honored in whole or in part, or if it opposes an objection or a motion for protective order, it must first attempt in good faith to resolve the issue with the other Party. If the issue cannot be resolved, the Party may, within three days of service of the objection or motion, file a motion to compel a response. The Presiding Officer may schedule a proceeding to address the motion.
(c) Objections to Information Requests or Record Requests. General objections to Information Requests or Record Requests are prohibited. Each objection to such a request shall be specific to that Request and shall have a good faith basis. If a Party refuses to answer an Information Request or Record Request, 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 Information Request or Record Request, the answer shall state either:
1. Notwithstanding the objection no information has been withheld from the answer; or
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.
(d) Objections to Requests for the Production of Documents and Things.
1. Where a Party serves a response to an Information Request or Record Request for production of documents and things before production is completed, the response may include general objections. Where general objections are made, however, the responding Party shall prepare and serve a supplemental response no later than five days after the completion of production.
2. Once production is completed, general objections to Information Requests or Records Requests for production of documents and things are prohibited. As to each such request, the supplemental response shall state either:
a. Notwithstanding prior general objections, all responsive documents or things in the possession, custody, or control of the responding Party have been produced;
b. After diligent search no responsive documents or things are in the possession, custody, or control of the responding Party; or
c. The 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.
3. In the initial written response, the responding Party shall articulate with clarity the scope of the search conducted or to be conducted. If the scope of the search changes during production, the responding Party in a supplemental written response shall articulate with clarity the change in scope. If the scope of the search does not include all locations, including electronic storage locations, where responsive documents or things reasonably might be found, the responding Party shall explain why these locations have been excluded from the scope of the search.
(5) Rulings on Discovery Disputes. The Presiding Officer may compel a response to the discovery sought and may, where justice requires, issue protective orders to protect a Party from annoyance, embarrassment, oppression or undue burden or expense, or to prevent undue delay in the Proceeding. The Presiding Officer may order limits on the scope, method, time and place for discovery or impose provisions for protecting confidential or privileged information or documents, consistent with applicable statutes.

Notes

211 CMR 41.17

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