Mass. R. Civ. P. 30
Counsel shall identify themselves by stating their names, their addresses, the names of the parties or persons for whom they appear at the deposition, and nothing more.
Mass. R. Civ. P. 30
Reporter's Notes:
Reporter's Notes--2022 In 2020, the Standing Advisory Committee on the Massachusetts Rules of Civil Procedure, charged with the task of reviewing and recommending to the Rules Committee of the Supreme Judicial Court amendments to the Massachusetts Rules of Civil Procedure, published for comment proposed amendments to Mass. R. Civ. P. 30 ("Depositions Upon Oral Examination") and Mass. R. Civ. P. 30A ("Audiovisual Depositions and Audiovisual Evidence"). The proposal was accompanied by a memorandum from the Standing Advisory Committee explaining the proposed amendments. These Reporter's Notes are taken in part from this memorandum.
The goal of the proposed amendments was to streamline and modernize the rules governing depositions. Given the prevalence of audiovisual depositions in current practice, the Committee believed it was anachronistic to maintain one rule for depositions recorded solely by stenographic means and a second rule for depositions also recorded by audiovisual means. Accordingly, the amendments to Rules 30 and 30A combine these two rules into a single Rule 30 and repeals Rule 30A. Because guidance from prior caselaw and the Reporter's Notes to Rule 30A may be relevant to interpretation of the revised Rule 30, the Reporter's Notes to repealed Rule 30A are reproduced as an appendix to the 2022 Reporter's Notes to Rule 30.
Two provisions in the published draft that have not been adopted involved limitations on the number of depositions and the duration of depositions.
(1) Number of depositions. The proposal would have required a stipulation of the parties or leave of court "if the deposition would result in more than ten total depositions by the plaintiffs, or by the defendants, or by the third-party defendants, or by any group of parties which share a common interest in the litigation." This change, if adopted, would have been consistent with the ten-deposition rule set forth in Fed. R. Civ. P. 30(a)(2)(A)(i) and Local Rule 26.1(c) of the United States District Court for the District of Massachusetts.
(2) Duration of depositions. The proposal also would have adopted a deposition time limitation of one day of seven hours, excluding reasonable breaks, absent a court order or agreement of the parties. A court would have been required to allow additional time "if necessary for a fair examination of the witness, or if any circumstance, including conduct by the witness or counsel, impedes or delays the deposition." The one-day/seven-hour limitation would have been consistent with Fed. R. Civ. P. 30(d)(1).
After consideration of the many comments received after publication of the proposal and after deliberation, the Standing Advisory Committee on the Massachusetts Rules of Civil 2 Procedure voted not to include the limitations on the number and duration of depositions in the proposal sent to the Rules Committee of the Supreme Judicial Court, thus retaining the existing Massachusetts practice in this area. A majority of Committee members expressed the view that there were not sufficiently strong reasons to change long-standing Massachusetts practice that did not include an express limitation on the number and duration of depositions and that existing provisions in the rules provided sufficient tools to address abuses arising from an excessive number of depositions or from unnecessarily lengthy depositions.
Revised Rule 30 follows the structure of Fed. R. Civ. P. 30 ("Depositions by Oral Examination"), as the federal rule covers both stenographic and audiovisual depositions. In addition, Fed. R. Civ. P. 30 has been updated numerous times since its adoption and is generally clearer and more concise than its Massachusetts counterpart. Except where noted, the 2022 amendments have preserved the existing substantive differences between the Massachusetts rules and the federal rule.
Rules 30(h)-(n) contain the provisions of existing Mass. R. Civ. P. 30A(g)-(m), with the changes described below. Sections (g)-(m) of Rule 30A relate to how audiovisual depositions may be used at trial. While these rules might more logically be placed in Rule 32 ("Use of Depositions in Court Proceedings"), moving these provisions to Rule 32 would necessitate a broader rethinking of the structure of Rule 32, so these provisions have been maintained in Rule 30 with streamlining edits only.
Rule 30(a). Rule 30(a) follows the structure of Fed. R. Civ. P. 30(a), though preserves, with certain modifications, provisions unique to Massachusetts practice.
Rule 30(a)(2)(A)(ii) substantially simplifies the description of the applicable requirements when a party seeks to take a deposition within 30 days after service of a summons and complaint, but the witness plans to travel during that period. Prior Rule 30(b)(2) required a certification that the witness "is about to go out of the country where the action is pending and more than 100 miles from the place of trial, or is about to go out of the United States, or is bound on a voyage abroad.." The revised rule requires a certification that "before the 30-day period following service has expired the deponent is expected to leave the Commonwealth and be unavailable thereafter."
Except in cases where the plaintiff seeks primarily equitable or declaratory relief, Rule 30(a)(2)(B) requires leave of court if there is no reasonable likelihood that recovery in the matter will exceed $7,000, as opposed to the $5,000 floor in the prior Massachusetts rule. The jurisdictional ceiling for small claims matters under G.L. c. 218, § 21, is $7,000. No discovery is permitted in small claims matters except for good cause shown. Uniform Small Claims Rule 5.
The revised rule eliminates two provisions in prior Rule 30(a) which are no longer necessary. It eliminates the requirement for leave of court for depositions where the action is pending in Superior Court following a trial in District Court. Since 2004, parties dissatisfied with a judgment in a District Court damage action can no longer seek a new trial in the Superior 3 Court. G.L. c. 218, § 19B. The revised rule also eliminates prior Rule 30(a)(v), requiring leave of court for a deposition in certain domestic relations matters. The Massachusetts Rules of Domestic Relations Procedure provide the procedures in such cases.
Rule 30(b). Rule 30(b) is modeled after Fed. R. Civ. P. 30(b), though like Rule 30(a) it preserves certain requirements in existing Massachusetts practice not present in the federal rule. These include the requirement for 7 days' written notice before taking a deposition in prior Rule 30(b)(1), the provision that if a party served with a deposition notice under prior Rule 30(b)(2) within 30 days of the service of the summons and complaint is unable to retain counsel to represent it at the deposition, then the deposition may not be used against that party; the provision in prior Rule 30(b)(4) that a stenographic record of the deposition will be prepared even if the deposition is recorded by audiovisual means, unless the parties otherwise stipulate; and the provision in prior Rule 30(b)(5) that a request under Rule 34 to a party deponent to bring documents to the deposition shall be made with at least 30 days' notice unless otherwise ordered by the court. Rule 30(b)(3)(A) adds a requirement that if the notice of the deposition indicates that it will be recorded by audiovisual means, it will also indicate if the operator of the audiovisual equipment is an employee of the noticing attorney.
Rule 30(c). The prior rule has been simplified to more closely follow the federal rule and to eliminate redundancy with revised Rule 30(b).
Rule 30(d). Rule 30(d)(2) adds a provision enabling the court to impose appropriate sanctions, including reasonable expenses and attorney's fees, on any person, including the deponent, who impedes, delays or frustrates the fair examination of the deponent. Sanctionable conduct may include frequent inappropriate objections, coaching of the witness, refusal to agree on a reasonable apportionment of time among parties to examine a witness, or other inappropriate or unprofessional conduct. Sanctionable conduct may also include, as reflected in the 2001 Reporter's Notes to Rule 30(c), an instruction to a deponent not to answer, unless a privilege or some other legal protection against disclosure applies. As set forth in the notes to the analogous Federal rule, "[i]n general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer." Notes of Advisory Committee on the Federal Rules of Civil Procedure, 1993 Amendment.
Rule 30(e). Rule 30(e) clarifies that the 30-day day period for signing of the transcript by the witness runs from the completion of each day of the deposition, not from the completion of an entire, 4 multi-day deposition. The amended rule is consistent with the decision of the Appeals Court in Tam v. Federal Management Co., Inc., 99 Mass. App. Ct. 41 (2021).
Otherwise, the prior rule remains unchanged, except for stylistic changes (for example, the previous language the court "holds" has been changed to the court "rules."
Rule 30(f). Rule 30(f) largely adopts the text of the analogous federal rule, although it eliminates the requirement that once the transcript is complete the officer must seal in an envelope and deliver a physical copy to the party taking the deposition. Given the multiple ways to transmit the completed transcript electronically, the rule simply requires "delivery."
Rule 30(g). The rule adopts the text of the federal rule.
Rule 30(h). Prior rule 30A(g) has been simplified to eliminate redundancy, with stylistic changes.
Rule 30(i). The text of Rule 30(i) is the same as former Rule 30A(h), with stylistic changes.
Rule 30(j). The text of Rule 30(j) is the same as former Rule 30A(i), with stylistic changes. Rule 30(k)(formerly Rule 30A(j)). The prior rule has been simplified to eliminate redundancy, with stylistic changes.
Rule 30(l) (formerly Rule 30A(k)). The prior rule has been simplified to eliminate redundancy and update cross-references, with stylistic changes.
Rule 30(m) (formerly Rule 30A(l)). The text of Rule 30(m) is the same as former Rule 30A(l), with stylistic changes.
Rule 30(n) (formerly Rule 30A(m)). The prior rule has been simplified to eliminate redundancy. Stylistic changes and updated references have been made
(2001): In 1998, the Supreme Judicial Court amended Rule 30 in an attempt to deal with "deposition abuse." Rule 30(c) now provides that objections during a deposition "shall be stated concisely and in a non-argumentative and non-suggestive manner." Further, the amended rule prohibits an instruction to a deponent not to answer except where a privilege may exist or where some other legal protection against disclosure may apply. The language of the Massachusetts rule was drawn from Federal Rule 30.
Despite the 1998 amendment which requires that objections be made in a non-argumentative and non-suggestive manner, suggestive objections or comments continue to be made at depositions. Further commentary is therefore in order. The intent of the 1998 amendment was to prevent the indirect coaching of witnesses by objections or comments from counsel. Thus, the attorney who, after a question, interjects the suggestive objection or comment "if you remember," "if you understand," or "if you have personal knowledge," acts contrary to the language and spirit of the new rule by indirectly suggesting how the witness should respond. The questioning attorney may consider taking appropriate action in response to such coaching suggestions, including suspending the deposition for purposes of obtaining an appropriate court order (Rule 30(d) ).
It has been suggested that some attorneys, cognizant of the prohibition against suggestive comments or hints during the deposition, may accomplish the same result by seeking to confer with the client in private prior to the client answering the question. It appears that the rule does not permit such conferences except where appropriate to preserve a privilege or protection against disclosure. A deponent, for example, may not realize that the privilege against self-incrimination provides a legal basis to decline to answer a question; intervention of counsel and a conference with counsel may be necessary to determine whether the deponent will invoke the privilege. In other circumstances, however, the use of private conferences between lawyer and deponent would serve to provide an end-run around the 1998 rule against suggestive objections and the general rule that examination of witnesses at depositions "may proceed as permitted at the trial..." (Rule 30(c) ). Just as a lawyer may not interrupt the questioning of a witness in order to confer in private and develop strategy with the witness, nor should the lawyer be allowed to interrupt the flow of questions at a deposition. Nor may the deponent stop the deposition in order to seek the advice of counsel (except in the case of a privilege or protection against disclosure).
(1998) The purpose of the 1998 amendments to Rule 30, modeled after 1993 amendments to Federal Rule 30, is to address the problem created by objections during a deposition and by directions to a deponent by counsel not to answer a question.
Under the revised rule, objections must "be stated concisely and in a non-argumentative and non-suggestive manner." The Notes of the Advisory Committee on the 1993 federal change aptly described the problem concerning objections as follows: "Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond.".
A related problem concerns instructions by counsel to a deponent not to answer. This issue is addressed by the 1998 amendments by adding language to Rule 30(c), taken in part from 1993 amendments to Federal Rule 30, that such instructions are permissible only in the case of a privilege (such as attorney-client privilege) or protection against disclosure (such as the "work product" protection set forth in Mass. R. Civ. P. 26(b)(3) ); where a court has imposed limitations on the deposition testimony; where the parties have entered into a written stipulation setting forth limitations; or to terminate the deposition in order to move in court for an appropriate order regarding the deposition (for example, a motion under Mass. R. Civ. P. 30(d) to terminate or limit the deposition on the basis that "the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party").
It should be noted that Mass. R. Civ. P. 30(c) makes clear that if there is objection to certain aspects of the deposition, the deposition shall proceed and the objection preserved. Objecting counsel does have the option, of course, under Mass. R. Civ. P. 30(d), to suspend the deposition for purposes of seeking a court order to terminate or limit the deposition. Counsel considering such a move, however, may want to consider the technique of recommending that the objectionable questions be set aside until later in the deposition in order to allow the rest of the deposition to move forward without interruption. After the rest of the questioning is complete, counsel may then consider whether it is necessary to bring the objections to the attention of the court.
The 1998 amendments have also moved the last sentence of the second paragraph of Rule 30(c) to the first paragraph for clarity purposes, thus leaving the focus of the second paragraph on objections and evidence at depositions.
Finally, minor changes have been made to the first paragraph of Rule 30(c) in order to make the language gender-neutral.
(1996) Rule 30(d) has been amended to add a reference to "judicial district" to take into account the applicability of the Rules to the District Court and Boston Municipal Court. Certain provisions from Mass. R. Civ. P. 30 which did not appear in the District Court version of Rule 30 (regarding leave of court where the action is pending in the Superior Court after District Court trial and where the action relates to domestic relations matters) now apply in the merged set of Rules.
(1989) Because of the simultaneous amendment to Mass. R. Civ. P. 5(d) which states that transcripts of depositions shall no longer ordinarily be presented or accepted for filing, the obligation of the officer at the deposition to file the deposition has been changed. "Unless otherwise ordered," the officer must now "deliver or send" the deposition "to the party taking the deposition" (Rule 30(f)(1) ), and the party taking the deposition "shall give prompt notice of its receipt to all other parties" (Rule 30(f)(3) ). See, also, Reporter's Notes to the Amendment to Rule 5(d).
(1973) Although patterned on Federal Rule 30, Rule 30 has been altered to encompass existing practice under S. J. C. Rule 3:15. The situations in which leave of court must first be obtained closely follow the strictures of S. J. C. Rule 3:15. The rest of the procedural scheme is thoroughly familiar. In order to fill what appeared to be a hiatus in Federal Rule 30, the Advisory Committee inserted in Rule 30(b)(5) language to ensure that a party seeking documentary discovery at an oral deposition provide his opponent with at least 30 days' notice.