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Comment Round-Up: Update on the Recent Submissions on Proposed Rule Changes by the Business and Commercial Litigation Section

August 10, 2017

As we’ve often noted, the opportunity to comment on proposed amendments to various rules allows BBA members to leverage their particular expertise and offer specific, constructive feedback on items that influence their own practice of law. In addition, the courts have long shown an interest in taking a close look at these submissions by the Sections and often the concerns expressed in the comments are reflected in the final iterations of the rules.

The Business and Commercial Litigation Section has consistently been one of our most prolific contributors of comments on rule changes and the past few months have been no different. The hard-working “Comments Subcommittee,” made up of Paula BaggerDaniel Tighe, Brendan St. Amant, and John Bauer, with active oversight from the Section’s Co-Chairs, Brenda Sharton and Debra Squires-Lee, took the lead in producing the Section’s thorough and thoughtful comments over the last year.

Below, we highlight four comment submissions, beginning with the two most recent sets of comments submitted by the Section:

Proposed Amendments to the Massachusetts Rules of Appellate Procedure

Just this week, the BBA Executive Committee approved submission of comments on the proposed amendments to the Massachusetts Rules of Appellate Procedure.

The proposed amendments were drafted by the Appellate Rules Subcommittee, appointed by the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil and Appellate Procedure. The Subcommittee was tasked with identifying proposals that would clarify the meaning and formatting of the rules, assist in the development of paperless processes, and encourage the just and speedy resolution of appeals.

Given the lengthy and technical nature of the amendments, representatives from interested sections were tasked with undertaking the review and drafting of the comments on behalf of their sections, with comments then redistributed for final review by the full Steering Committee. Paula Bagger and Daniel Tighe volunteered to tackle the lengthy proposed amendments and draft the comments on behalf of the Business and Commercial Litigation Section Steering Committee while Bethany Stevens did the same for the Criminal Law Section Steering Committee. Upon finalization, Paula Bagger and Bethany Stevens joined the Executive Committee to report on their comments.

Both the Business and Commercial Litigation Section and the Criminal Law Section expressed great appreciation for the great amount of work undertaken by the Standing Advisory Committee and the Appellate Rules Subcommittee to produce the amendments, and the BBA echoed this appreciation in the cover letter accompanying the comments. Overall, the Business and Commercial Litigation Section and the Criminal Law Section “were in agreement that the proposed amendments offered substantial improvements, especially by addressing technological advancements and changes to practice that have made the current rules obsolete and clarifying aspects of rules that were confusing and added difficulty for those who do not frequently appear before the Appeals Court or Supreme Judicial Court.” Both Sections then offered their own more technical suggestions for ways the proposed amendments could be tweaked to make them even clearer.

Proposed Amendments to the Supreme Judicial Court Rule 1:11

In June, the BBA submitted comments on behalf of the Section in relation to proposed amendments to Supreme Judicial Court (SJC) Rule 1:11, Relative to the Disposal of Old Court Papers and Records.

The SJC Rules Committee solicited comments on the proposed amendments, which were drafted upon consideration by an SJC-appointed committee, on “whether changes were warranted regarding the scope of case records required to be retained permanently and whether any records might be retained electronically.” The proposed amendments offer a number of changes, including increased allowances for the use of electronic storage and the disposal of certain files, simplified notice requirements, and expansion of the rule to include the SJC and Appeals Court in addition to the Trial Court.

The comments drafted by the Steering Committee outlined a few of the strengths as well as a few of the ambiguities in the proposed amendments. For example, members praised the permissive nature of the rules, noting it was important that clerks are allowed discretion to retain those records they think important, even if they would be permitted to dispose of them. However, the comments also outlined those sections that could use some clarifying, including the lack of requirements related to “sampling” and the ambiguity in whether certain records that must be retained permanently must also be stored electronically.

Brendan St. Amant presented the Section comments before the BBA Executive Committee and Council, and following Brendan’s presentation, the BBA was struck by the potential significance of these rule changes. As a result, in the accompanying cover letter, President Carol Starkey stressed the need to balance the creation of an efficient mechanism for storing and disposing of records while also maintaining a great deal of deference to the historical significance of many legal documents, including recent documents, whose future historical value may not yet be fully evident.

We’ll be sure to keep you posted once the final approval of the amendments to SJC Rule 1:11 and Massachusetts Rules of Appellate Procedure are announced.

In addition to these submissions, two final rules previously commented on by the Section were recently announced:

Board of Bar Overseers Rule 3.18 and Related Rules

Late last year, the Board of Bar Overseers (BBO) sought comment on proposed amendments to Rule 3.18 and related provisions of sections 2.8(b)(1), 2.13, 3.16, 3.17, 3.22(d), 3.32, and 4.9(a)(1) and (2). The proposed changes were an effort to clarify the allocation of authority between hearing officers and Board Members in ruling on certain motions. The amendments generally provide that when a hearing officer is appointed to a matter, they will have authority to decide most motions, but some motions will be reserved exclusively for Board Members, including motions by a respondent to dismiss charges, motions for a protective order, and motions on discovery.

In February, the BBA submitted comments on these proposed changes on behalf of the Business and Commercial Litigation Section and the Ethics Committee. The comments expressed unanimous support for these “welcome and necessary” amendments. The Section felt that certain motions, like those on protective orders and discovery, “are too important as a matter of due process to be left to the hearing committee members who may only hear one or two matters in their entire tenure.”

Last month, the SJC approved these amendments, which will be effective September 1, 2017.

Massachusetts Rules of Civil Procedure 26(b)(5)(A)

The same day we submitted comments on the proposed changes to BBO Rules, we also submitted comments on behalf of the Business and Commercial Litigation Section on Proposed Amendments to Rule 26 of the Mass. Rules of Civil Procedure. The proposed amendments would conform the Massachusetts rules on privilege logs to the federal rule, which, unlike the current Massachusetts rule, does not require a document-by-document log of privileged information, though parties are still required to describe the nature of the material withheld in enough detail for the other party to assess the merits of the withholding.

The Business and Commercial Litigation Section comments expressed a variety of views by members of the Section, including those that favored the proposed new rule and those who believed the present rule was more suitable to Massachusetts-specific courts and cases. For example, some members felt the new rule would address shortcomings in the current rule that made the process too time-consuming, expensive, and could be unfair for those parties with many more privileged documents, while others felt the current rule, though burdensome, offered greater and necessary safeguards for parties seeking the information. In addition, some members noted some discomfort with the rule’s lack of specific language providing for a judge’s ability to order production of a privilege log in certain circumstances. Though a judge could take that step without specific language in the rule, placing such authority in the rule itself would render a ruling of that type less extraordinary.

The SJC also recently announced the final amendments, effective September 1, 2017, to this rule. The final approved amendments remain largely the same as the proposed amendments, with the addition of one sentence, that reads “[t]he court, upon motion, may order the withholding party to provide such additional information as is necessary to assess the claim of privilege.” This addition helpfully offers the clarity sought by those members who thought the rule could benefit by the specific inclusion of the court’s ability to order the production of more information when appropriate.

The presentation on the Section’s comments both the BBO Rules and the Massachusetts Rules of Civil Procedure to the BBA Executive Committee and Council in February was made by Paula Bagger (and, ICYMI, she will be, alongside Stephen Riden, the co-chair of the Business and Commercial Litigation Section Steering Committee in 2017 – 2018).

With the new program year only a few weeks away, we are excited to see all the future comments coming from the Business and Commercial Litigation Section and all the other sections at the BBA!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association