Where Did You Look and For What? An Overlooked Provision of Superior Court Rule 30A Helps Parties Avoid Discovery Pitfalls

By Sandra Masselink

Like technology itself, the role of electronically stored information (“ESI”) in discovery keeps evolving. A lawyer’s duty to understand their clients’ sources of ESI must evolve as well. Procedural rules require lawyers to fulfill that duty and, in turn, meet their discovery obligations. However, one such rule—Massachusetts Superior Court Rule 30A, which sets out procedures applicable to written discovery, including the representations a party must make regarding the search it conducts in response to requests for production—is frequently overlooked. Paying close attention to Rule 30A’s requirements about responding to requests for production can help parties and courts avoid burdensome discovery disputes.

Describe Your Search

Rule 30A governs written discovery in Superior Court actions. Specifically, it establishes uniform definitions used in discovery requests and procedures regarding responses and objections to interrogatories and requests for production of documents. Mass. Super. Ct. R. 30A. Rule 30A—which was formerly Standing Order 1-09—was incorporated into the Superior Court Rules as an amendment effective as of January 1, 2016.

Rule 30A(3)(c) requires a party responding to requests for production to articulate details of its search for responsive material:

• A party must describe “with clarity” in its initial written response “the scope of the search conducted or to be conducted” for responsive documents or things. Mass. Super. Ct. R. 30A(3)(c).
• If the scope of the search changes during the course of the responding party’s productions, the party must supplement its earlier response and describe the change with the same degree of clarity.
• If the responding party’s search did not (or will not) encompass “all locations, including electronic storage locations, where responsive documents or things reasonably might be found,” the responding party must explain the reason for excluding any such locations.

Show Your Work

Discovery requires counsel to develop a thorough understanding of their clients’ systems of communication and document retention and storage, and Rule 30A(3)(c) effectively requires counsel to show that they have done the work. Attorneys have an affirmative obligation to supervise their clients’ discovery processes. That obligation cannot be fulfilled by simply taking a client’s word that they have adequately searched for and collected relevant discovery. There are myriad “modern” sources of ESI, from instant messaging systems to text messages and structured data, each of which may have unique preservation limitations and search capabilities and may require a unique collection process. It is the attorney’s role to understand these processes and provide advice and assistance. Rule 30A(3)(c) requires counsel to demonstrate that they have done so.

In practice, the information a party must provide to meet Rule 30A(3)(c)’s requirements will differ depending on the nature and complexities of the discovery sought. In particularly complex matters, counsel for the parties may benefit from meeting and conferring regarding the scope and methods of a search for responsive materials before responses and objections to requests for production are served.

As a general matter, to comply with Rule 30A(3)(c), counsel should consider including in an initial written response to requests for production:

• a description of the physical and electronic locations of potentially responsive material;
• relevant custodians;
• a list of search terms or other advanced technology procedures used in conducting a search; and/or
• any applicable date limitations, among other details.

If a party’s search excluded any locations of potentially relevant material, the party’s response might also explain that certain locations are inaccessible and could not be searched, or would impose a disproportionate cost or burden to search.

Cautionary Tales

Two recent cases highlight the risks of failing to comply with Rule 30A(3)(c)’s requirements. In Commonwealth v. MV Realty PBC, LLC, the Superior Court entered default judgment against certain defendants in connection with their repeated violations of the court’s discovery orders and Rule 30A. Dkt. No. 2284CV02823-BLS2, slip op. at 1-2 (Mass. Super. Ct. Feb. 27, 2025). The court explained that the defendants had “refus[ed] to explain the scope of [their] search for documents,” which they could have done “either by producing a Rule 30A statement or by providing an affidavit from someone with personal knowledge,” warranting sanctions. Id. at 5.

And in Mahanthappa v. Alere, Inc., the Superior Court awarded fees and costs in connection with the defendants’ motion to compel after the plaintiff conducted an “obviously insufficient” manual search of his email and paper files for responsive documents. Dkt. No. 2284CV00969-BLS2 at 2-3 (Mass. Super. Ct. Nov. 4, 2024). The court noted that, had the plaintiff complied with Rule 30A(3)(c)’s “requirement that a responding party provide specific information about the scope of its search for responsive documents,” that would have enabled the parties to confer about other document repositories and appropriate search terms, avoiding the need for motion practice. Id. at 3.

Conclusion

Rule 30A(3)(c) requires counsel to get involved at the outset of the document discovery process. By taking an active role in the search for relevant documents and ESI, and disclosing the details of that search, counsel can help their clients avoid costly and burdensome discovery disputes.

Sandra Masselink is an associate at Ropes & Gray LLP, where her practice includes complex civil litigation and government and internal investigations.