Foreign litigants recently successfully sought the assistance of the United States District Court for the District of Massachusetts in obtaining discovery of Massachusetts residents and a Massachusetts company for use in a foreign proceeding. See In re Penner, No. 17-CV-12136-IT, 2017 WL 5632658 (D. Mass. Nov. 22, 2017). The foreign litigants in that case relied on a Federal Statute, 28 U.S.C. § 1782, that permits U.S. District Courts to order discovery for use in foreign proceedings under certain circumstances. Section 1782 provides, in pertinent part, "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal." In granting discovery pursuant to Section 1782, the Penner court relied upon the United States Supreme Court's analysis of that statute in Intel Corp. v. Advanced Micro Devices, Inc.
The question of whether a spouse may be called as a witness in a civil case recently came up in the civil litigation surrounding the sexual assault allegations against comedian Bill Cosby. People often reflexively (and mistakenly) think that the issue is governed by the spousal privilege. In fact, in Massachusetts the spousal privilege is only applicable in criminal cases where one spouse is the defendant. M.G.L. c. 233 sec. 20, cl. 1. In those circumstances, the spousal privilege can be invoked by a witness to avoid being compelled to testify against his or her spouse. Com. v. Szerlong, 457 Mass. 858, 865 (2010). The testifying spouse can also choose to waive the privilege if the spouse wants to testify. Because the spousal privilege is applicable only in criminal proceedings, it is essentially irrelevant in civil litigation.
The Supreme Judicial Court recently amended Rule 45 of the Massachusetts Rules of Civil Procedure, effective as of April 1, 2015. The most significant change in the amended Rule 45 is the allowance of "documents only" subpoenas to non-parties. Previously, if only documents were sought from a non-party, Massachusetts practice involved serving a deposition subpoena that agreed to "waive the appearance" of the non-party at the deposition if the documents were produced. Consistent with the federal practice, now Massachusetts practitioners can serve a "documents only" subpoena when only documents are needed. The last line of Rule 45(b) makes clear that "[a] person commanded to produce documents, electronically stored information, or tangible things, or to permit inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial."
A Massachusetts Superior Court judge recently ruled that, when ABC Corporation merged with and acquired XYZ Corporation, ABC Corporation held XYZ Corporation's attorney-client privilege over pre-merger communications with counsel, even when those communications related to the merger itself. The decision is captioned Novack v. Raytheon Co., 2014 WL 7506205 (Oct. 24, 2014).
"The litigation process is -- or should be -- a search for the truth."
Most first-time litigants are unfamiliar with the process by which a lawsuit moves from filing to resolution. While every lawsuit is unique and different courts have different rules governing litigation procedure, most lawsuits in most courts follow a similar path from initial complaint to final judgment. Understanding the different stages of a lawsuit can help prepare first-time litigants for the unfamiliar process ahead.
Party discovery in arbitration is quite limited, particularly in comparison to the scope of discovery permitted by the Federal Rules of Civil Procedure. However, to what extent can an arbitrator order a third party - who, it should be noted, never agreed to arbitrate -- to appear and testify at an arbitration or to produce documents or other tangible items for use as evidence at an arbitration?
The Massachusetts Rules of Civil Procedure govern almost all civil cases in Massachusetts state courts. Next year, new amendments to the Rules will take effect, significantly impacting the discovery process for many state lawsuits. Most of the new amendments govern the exchange of electronically stored information (e.g., email messages), and have received much attention recently from lawyers and legal publications alike. Another aspect of the amendments, however, has received less attention to date: the formalization of procedures providing for the return of privileged material that has been inadvertently disclosed.
In business litigation, the question of whether a party's spouse is fair game for a deposition often comes up. Sometimes, the question arises simply because a lawyer wants to demonstrate the willingness to "take the gloves off." Other times the issue arises because the spouse may be one of the only people likely to have knowledge of facts that could be central to the case. Regardless of the reason, Massachusetts lawyers should be aware of the applicable rules and the distinction between the spousal privilege and the spousal disqualification, which are set forth at M.G.L. c. 233 sec. 20(a) and (b).
Countries with different legal traditions have vastly dissimilar approaches to discovery and the exchange of information. Whereas common law countries (and the U.S. in particular) favor broad discovery and the production of vast amounts of documents, European and Latin American countries generally disfavor that approach and seek to limit document production. Because of these differences, disputes as to the scope of discovery in international arbitration can be contentious, expensive, and very time-consuming.
It is not uncommon for litigants in proceedings pending outside of Massachusetts to need documents or testimony from witnesses who reside in Massachusetts. Even when the witness is willing to provide the requested information voluntarily, it is wise to serve a subpoena to minimize the delay if the witness changes his mind and decides not to cooperate. Indeed, even a "friendly" subpoena carries the threat of contempt sanctions for noncompliance and therefore serves as a powerful deterrent if the witness gets cold feet. A subpoena also has the advantage of preventing the witness from appearing predisposed to provide evidence favorable to the requesting party as may be the case if the evidence is voluntarily provided.