Jeffrey Wade
In Massachusetts, the discovery process allows parties to obtain information regarding any matter—not privileged—that is relevant to the subject of a pending action. An amendment to Rule 26(b)(5) in 2008 introduced the requirement of a privilege log, which mandates the withholding party to produce a log detailing the author, sender, recipient, date, type of document, and subject matter of withheld information. This rule has since been amended to allow for categorical privilege logs in cases where a document-by-document listing would be impractical. Chapter 175I of the Massachusetts General Laws outlines insurance information and privacy protection, prohibiting insurance institutions and their representatives from disclosing personal or privileged information collected in insurance transactions.
| Characteristics | Values |
|---|---|
| Recorded personal information | An insurance institution, insurance representative, or insurance-support organization shall make any personal information collected or maintained in connection with an insurance transaction |
| Personal or privileged information from insurance transactions | An insurance institution, insurance representative, or insurance-support organization shall not disclose any personal or privileged information about an individual collected or received in connection with an insurance transaction |
| Investigative consumer report | No insurance institution, insurance representative, or insurance-support organization may prepare or request an investigative consumer report about an individual in connection with an insurance transaction |
| Adverse underwriting decision | No insurance institution or insurance representative may base an adverse underwriting decision in whole or in part on the fact of a previous adverse decision |
| Disclosure of information | No cause of action in the nature of defamation, invasion of privacy, or negligence shall arise against any person for disclosing personal or privileged information |
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What You'll Learn
Massachusetts General Laws Chapter 175I, Section 13
The law states that written authorization from the individual is required before disclosing any personal or privileged information. This authorization must meet specific requirements, such as being obtained no more than one year before the disclosure. There are, however, several exceptions to this rule.
For example, disclosure without written authorization is permitted to enable a person to perform a specific business, professional, or insurance function for the disclosing entity, provided that the recipient agrees not to disclose the information further without authorization. Additionally, disclosure is allowed to determine an individual's eligibility for an insurance benefit or payment.
Other exceptions include disclosures to certificate holders or policyholders regarding the status of an insurance transaction and disclosures to lienholders, mortgagees, assignees, lessors, or others with a legal or beneficial interest in an insurance policy. In such cases, medical record information may be disclosed if permitted by other sections of the law, and the information disclosed must be limited to what is reasonably necessary for the recipient to protect their interests.
Furthermore, the law allows for disclosures in connection with the sale, transfer, merger, or consolidation of an insurance institution, insurance representative, or insurance-support organization. It also permits disclosures for marketing purposes, provided that no medical, personal, or privileged information is disclosed and that the individual has not objected to the use of their information for marketing.
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Amendment to Rule 26(b)(5) in 2008
In 2008, an amendment was made to Rule 26(b)(5) of the Massachusetts Rules of Civil Procedure, which added the requirement of a privilege log to the state's discovery rules. This log mandated the designation of each withheld item, document-by-document, including the author, sender (if different), recipient, date, type of document, and subject matter. This amendment aimed to address the burdens associated with voluminous privileged documents and provide a more practical approach to asserting privilege claims.
The introduction of the privilege log requirement in Massachusetts aligned with the existing Federal Rules of Civil Procedure. This amendment was designed to streamline the discovery process and ensure that parties could effectively evaluate claims of privilege. However, it's important to note that the rule amendment did not prohibit the creation of a document-by-document privilege log if a party chose to respond in that manner.
The 2008 amendment to Rule 26(b)(5) was part of a broader effort to update the Massachusetts Rules of Civil Procedure. These proposed amendments aimed to address challenges related to electronic discovery, enhance the management of electronically stored information, and establish procedures for assertions of privilege after production. The Standing Advisory Committee on the Massachusetts Rules of Civil and Appellate Procedure played a pivotal role in considering these changes, ensuring they reflected the goals outlined in the Prefatory Note to the Uniform Rules describing the 2006 amendments to the Federal Rules of Civil Procedure.
While the 2008 amendment added the privilege log requirement, subsequent changes to Rule 26(b)(5) have occurred. In 2017, an amendment to Rule 26(b)(5)(A) eliminated the need for a document-by-document log as the initial step. Instead, it adopted the approach used in the Federal Rules of Civil Procedure since 1993. This revision requires parties claiming privilege or protection to “expressly make the claim" and provide enough details for other parties to assess the claim without revealing privileged information.
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Massachusetts Rule 26: General provisions
In 2008, an amendment was made to Rule 26(b)(5), requiring a "privilege log" to be maintained in Massachusetts discovery rules. This log details each item withheld, along with its author, sender, recipient, date, type, and subject matter. However, this requirement has been relaxed in certain cases, particularly when dealing with a large number of electronic documents. The rule encourages parties to resolve disputes regarding privilege without court intervention and outlines the process for doing so.
Rule 26 also addresses the duty to disclose specific information, including potential witnesses, documentary evidence, damages, and insurance. This disclosure is necessary for trial preparation and informed decision-making about settlements. The rule grants non-party witnesses the right to obtain a copy of their own statement without a special request. Additionally, it discusses the discovery of information from experts retained in relation to litigation and the process for obtaining their opinions.
The rule also provides guidelines for situations where a party seeks discovery of documents and tangible items prepared in anticipation of litigation. It states that such discovery is permitted only when the requesting party demonstrates a substantial need for the materials and is unable to obtain them through other means without undue hardship. The court must protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of a party's attorney or representative.
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Massachusetts discovery rules
In Massachusetts, lawsuits are governed by the General Laws and Rules of Civil Procedure. These Rules provide several discovery tools that parties to a lawsuit can use to obtain information and evidence for their case. The discovery process can take months or even years to complete, depending on the complexity of the case and the volume of evidence. Discovery tools include depositions, interrogatories, and requests for the production of documents.
Depositions are sworn statements given by parties or witnesses to a lawsuit under oath. They are usually held at a lawyer's office and recorded and transcribed by an official court reporter. An attorney will examine, or ask questions of, a witness or the other party to the case for investigative purposes. For example, in a lawsuit where a person was injured in a car accident, the plaintiff may want to depose a witness who saw the crash.
Interrogatories are written questions asked by one party to the other. The answers or objections to the written questions must be answered in writing and under oath. Similar to depositions, interrogatories are used to obtain information and evidence from the other party to the lawsuit. The questions can range from broad ("How did the accident happen?") to specific ("Please provide the approximate speed of your vehicle just before the accident."). The Massachusetts Rules for Civil Procedure set time limits for when interrogatories must be answered. They must be answered within 45 days of their receipt.
A request for production of documents is another method of discovery allowed by the Massachusetts Rules of Civil Procedure. A party to a lawsuit (either the plaintiff or the defendant) can serve the other party with a written request to produce certain documents. The requests are usually for evidence related to the case but can also be for other documents that pertain to relevant issues involved in the case. Some examples of common documents requested include photographs, police/crash reports, medical records, and medical bills.
Massachusetts Rules of Civil Procedure Rule 26(b)(1) states that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, 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 books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
In 2017, an amendment was made to Rule 26(b)(5)(A), changing the procedure involving assertions of a claim of privilege or protection of trial preparation materials in connection with discovery requests. This amendment deleted the language that a privilege log must contain specified information—such as the author, recipient, date, and type of document—when a party responding to discovery claimed privilege or protection from discovery.
Massachusetts also acknowledges a legal concept known as the "discovery rule," which allows the statute of limitations to start when an injury is identified or reasonably should have been recognized, rather than from the date of the incident. This rule is particularly relevant in personal injury cases where the injuries were not immediately evident, potentially extending the time to file a lawsuit.
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Massachusetts discovery rules and federal rules changes
The Massachusetts Rules of Civil Procedure (MRCP) have undergone significant changes, affecting discovery procedures in lawsuits within the state. The Standing Advisory Committee on the Massachusetts Rules of Civil and Appellate Procedure considered possible changes to the state's discovery rules based on amendments to the federal rules. The proposed amendments aimed to address the burdens of discovery, specifically regarding electronically stored information.
The 2014 amendments to Rule 26 were part of a series of changes concerning the discovery of electronically stored information, impacting Rules 16, 26, 34, 37, and 45. The addition of factors to Rule 26(c) confirmed the authority of trial judges to grant protective orders and mirrored factors relevant to limiting the discovery of electronically stored information under Rule 26(f)(4)(E). This change was adopted by the Supreme Judicial Court in 2016 as a "compromise" after the Standing Advisory Committee recommended not rushing to change the Massachusetts discovery rules.
Another notable change was the addition of section (f) to Rule 37, creating a "safe harbor" provision. This provision prevents sanctions when electronically stored information is lost due to the routine, good-faith operation of an electronic information system. Rule 37 was further amended to align with its federal equivalent, making it easier to achieve and award sanctions for non-compliance with discovery orders.
Massachusetts also amended Rule 33, which governs interrogatory practice. This amendment allows defendants to serve interrogatories at any time after the commencement of an action and introduces the concept of "sets" to the thirty-interrogatory limit, provided the total does not exceed thirty. Additionally, Rule 33 liberalizes the consequences for failing to answer interrogatories, providing a thirty-day grace period before dismissal or judgment.
The Massachusetts Supreme Judicial Court (SJC) has adopted a “wait and see” approach to evaluating the impact of changes to the Federal Rules of Civil Procedure before making similar amendments to the MRCP. This approach considers the potential drawbacks and unintended consequences of imposing federal changes on Massachusetts trial courts.
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Frequently asked questions
Chapter 175I of the Massachusetts General Laws outlines Insurance Information and Privacy Protection.
Chapter 175I outlines the obligations of insurance institutions, insurance representatives, and insurance-support organizations to protect personal and privileged information collected in connection with insurance transactions.
Violations of Chapter 175I can result in legal action, including claims of defamation, invasion of privacy, or negligence.
Personal information collected or maintained by insurance institutions, insurance representatives, or insurance-support organizations in connection with insurance transactions is protected. This includes medical record information.
No, Chapter 175I prohibits insurance institutions from preparing or requesting investigative consumer reports about individuals in connection with insurance transactions.
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