Failure to make discovery: Sanctions

(2014) The 2014 amendments to Rule 37 were part of a series of amendments concerning discovery of electronically stored information. For background, see the 2014 Reporter's Notes to Rule 26 . These amendments added section (f) to Rule 37. This section establishes a "safe harbor" provision that will preclude imposition of sanctions where electronically stored information "is lost as a result of the routine, good-faith operation of an electronic information system." It is taken from Rule 37(e) of the Federal Rules of Civil Procedure and Rule 5 of the Uniform Rules Relating to the Discovery of Electronically Stored Information. The 2014 amendment to Rule 37, as well as the other amendments to the discovery rules regarding electronically stored information, was not intended to change any existing law in Massachusetts on the obligation to preserve evidence when litigation is reasonably anticipated or has commenced. A duty to preserve may exist as a matter of common law, statutory law, or by reason of a court order. The following comment from the 2006 Advisory Committee Notes to Federal Rule 37 is equally applicable in Massachusetts: The good faith requirement of Rule 37(f) means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a "litigation hold." (1996) The 1996 amendments to paragraphs (a)(1) and (b)(1) merely add appropriate references to "judicial district" to take into account the applicability of the Rules to the District Court and Boston Municipal Court as result of the merger. (1994) Prior to this amendment, there was an anomaly in Mass. R. Civ. P. 37(a)(4). The first paragraph, relating to motions for orders to compel discovery which are granted, says "the court may, after opportunity for hearing, require" the payment of reasonable expenses, including attorney's fees, "incurred in obtaining the order." The second paragraph, concerning such motions that are denied, used the verb "shall" instead of "may". Although the companion Federal Rule uses "shall" in both paragraphs, the Standing Advisory Committee believes that "may" makes more sense. First, as was pointed out in Smith and Zobel, Massachusetts Practice, Rules Practice, Vol. 7 (1975), at Sec. 37.3, "[e]ach paragraph contains explicit language allowing the court not to order the payment if it finds either that the opposition or pressing of the motion, as the case may be, were substantially justified, or that 'other circumstances make an award of expenses unjust.' " Therefore both paragraphs should "be taken in the permissive rather than the mandatory sense." Second, hearings are time-consuming, and it does not make sense to require hearings in all cases when the net result will usually be either the imposition of no sanction or a modest sanction. After the amendment, whether the motion to compel discovery has been won or lost, the judge may (but does not have to) order the payment of reasonable expenses, but such an order for payment cannot be made without first providing the opportunity for a hearing. (1983) This amendment permits the court to apply sanctions against those who fail to comply with a discovery order, without the necessity of finding that the noncompliance was wilful. The amendment makes the rule consistent with Fed. R. Civ. P. 37(b), upon which it was patterned. The amendment's purpose is to increase compliance with discovery orders, by making it easier for parties to achieve, and judges to award, sanctions for the failure to comply with a discovery order. (1973) Rule 37 substantially follows Federal Rule 37. The penalties imposed are those listed in SJC Rule 3:15 , with the addition of penalties for willful disobedience of a physical-examination order under Rule 35 . Rule 37, like Rule 3:15, but unlike Federal Rule 37, makes clear that an order of contempt may issue only if the refusal to obey a discovery order is willful; similarly, only a willful failure to produce another person for a physical examination justifies the imposition of any sanctions at all.