Massachusetts Business Litigation Session Bench Notes Guidebook

In April 2022, the four Massachusetts Business Litigation Session Justices issued their BLS BENCH NOTES – MBA Complex Commercial Litigation Section – Business Litigation Session Practice Guide. This practice guide was prepared in conjunction with the Massachusetts Bar Association’s Complex Commercial Litigation Section Council’s BLS Practice Questionnaire Committee.

A copy of the Bench Notes can be found here.

This 48-page document, setting out litigation guidelines and best practices in the BLS, is formatted as questions and answers from Justices Kenneth W. Salinger, Peter B. Krupp, Hélène Kazanjian and Michael Ricciuti.  And it is a long and detailed set of questions, organized by process stages (acceptance into the BLS, case management, discovery, ESI, expert discovery, discovery disputes, wide ranging motion practice issues, pre-trial and trial).

The questions/table of contents are listed in abbreviated fashion below.  Again, the Bench Notes, and the answers to these questions, can be found here.

ACCEPTANCE INTO BLS

(1) What factors are relevant to your decision whether to accept a case into the BLS? Are there types of cases you generally do not accept in the BLS?

(2) What factors do you consider when transferring a case from a general session to the BLS sua sponte?

CASE MANAGEMENT AND GENERAL ISSUES

(1) Do you use a customized Rule 16 case management conference notice or the standard notice to appear? What, if anything, do you instruct the parties to file in connection with a Rule 16 case management conference beyond what is in the standard notice to appear?

(2) Do you have any requirements or preferences for who must appear for the case management conference? If so, what are they? (3) Do you have any requirements or preferences for setting tracking order deadlines? If so, what are they?

(4) During the ongoing pandemic, are you conducting Rule 16 conferences via videoconference or in the courtroom? Will that change post-pandemic?

(5) Do you ever phase or bifurcate discovery? If so, when and how?

(6) Are there situations under which you do not grant a motion for a confidentiality order or to file papers under seal, even if the parties agree? Do you have any specific requirements for granting confidentiality orders and/or motions to file papers under seal?

(7) What is your preference with regard to courtesy copies of pleadings, motions, and memoranda? (8) Do you have any other case management tips or preferences for BLS cases?

DISCOVERY

GENERAL

(1) Do you generally permit extensions of the tracking order when the parties jointly request an extension? If so, under what circumstances do you not permit an agreed-upon extension of a tracking order?

(2) Do you generally grant permission to parties to serve in excess of thirty interrogatories? If not, under what circumstances do you grant permission?

ELECTRONICALLY STORED INFORMATION

(1) Do you require parties to confer regarding a plan addressing discovery of electronically stored information?

(2) Do you have a standard order or established guidelines for the discovery of electronically stored information and/or for specific aspects of the list set forth in Rule 26(f)(3)? Do you generally include anything in addition to the list set forth in Rule 26(f)(3)?

(3) What do you consider in issuing an order for allocating expenses for discovery of electronically stored information?

EXPERT DISCOVERY

(1) Do you require plaintiffs to disclose their expert reports before defendants do, or do you require the parties to make the disclosures simultaneously?

(2) How detailed do you require expert disclosures to be?

(3) Do you usually permit expert depositions? What are your considerations in determining whether an expert may be deposed?

DISCOVERY DISPUTES

(1) Do you ordinarily hold hearings on discovery motions? If so, under what circumstances do you decide discovery motions without a hearing? If not, under what circumstances do you hold a hearing?

(2) Under what circumstances, if any, have you imposed, or are you likely to impose, sanctions in discovery disputes? What form have these sanctions taken?

(3) What level of detail do you require or prefer for parties’ statements pursuant to Superior Court Rule 30A(3)(c) regarding the scope of the search for responsive documents? Are there occasions in which you have ordered a party to serve a revised statement?

(4) How do you address emergency calls during depositions? How do you prefer parties to handle disputes that arise during a deposition?

MOTION PRACTICE

(1) Do you have any policy or practice regarding granting motions for leave to file memoranda in excess of the specified page lengths?

(2) Do you ordinarily hold hearings on dispositive motions? If so, under what circumstances do you decide motions without a hearing? If not, under what circumstances do you hold a hearing?

(3) Are you willing to stay discovery during the pendency of a motion to dismiss? If so, what factors do you consider?

(4) Do you generally allow parties to file partially dispositive motions? What factors do you consider most important in deciding?

(5) How do you prefer parties cite to facts and exhibits in the summary judgment brief or memorandum? For example, should parties cite only to the statement of facts or also to the specific supporting material?

(6) How do you prefer parties to respond to Rule 9A(b)(5) statements that do not comply with the rule? For example, do you prefer motions to strike or objections in the response or something else?

(7) When, if ever, do you permit surreplies? If you permit them, do you place any limitations on them?

(8) Do you impose specific time limits for argument at a hearing?

(9) Do you have any policy or preference with respect to having multiple attorneys argue on behalf of a single party during a hearing?

(10) Do you have any policy or preference with respect to associates handling just part of a hearing on a motion?

(11) Do you allow/require supplemental briefing after a hearing? If so, under what circumstances?

(12) When do you prefer Daubert-Lanigan motions be brought?

(13) Under what circumstances do you permit an evidentiary hearing in connection with a
Daubert-Lanigan motion?

(14) Do you have any preferred practices for parties’ seeking preliminary injunctions or any other preliminary relief? In what circumstances, if any, will you grant preliminary relief ex parte?

(15) During the ongoing pandemic, are you conducting hearings on dispositive motions via videoconference or in the courtroom? Will that change post-pandemic? Will you entertain joint requests made by the parties to hold a hearing via videoconference or in the courtroom?

(16) Do you have any other tips or preferences for preparing and filing motion papers?

(17) Do you have any other tips or preferences for motion hearings?

PRETRIAL

(1) After the initial case management conference, do you generally schedule any further conferences (e.g., status conference near or shortly after the close of fact discovery)?

(2) When do you typically schedule the final pretrial conference?

(3) At what point in the process do you set the trial date?

(4) What information do you require parties to provide at pretrial conferences? Do you have a form or order regarding filings for the pretrial conference? What degree of evidentiary detail do you prefer or require in the pretrial memorandum?

(5) Do you follow the standard pretrial schedule form or do you have a different preference or practice for pretrial scheduling? How far ahead of trial will you schedule motions in limine and request the submission of jury instructions, exhibit lists, verdict forms, and other pretrial items?

(6) Do you typically encourage the parties to pursue ADR? If you do so, when and how do you typically do it?

(7) Typically, will you stay proceedings if the parties pursue ADR?

(8) Do you have any other tips or preferences for pretrial practice?

TRIALS

(1) During the ongoing pandemic, are you holding any type of trial or any aspect of trial via videoconference (e.g., out-of-state witness)? Do you expect that to change post-pandemic?

(2) Do you typically schedule full-day or half-day trials? Does the schedule differ between jury and bench trials?

(3) Do you set time limits for trials? If so, under what circumstances and what are they?

(4) In general, how do you conduct jury voir dire? Do you allow counsel to ask questions on voir dire?

(5) Do you have a process for the sequence in which counsel exercise peremptory challenges?

(6) Do you exclude witnesses or exhibits that are not listed in the pretrial memorandum, either sua sponte or by motion of the party?

(7) Do you strictly limit the scope of expert testimony at trial to matters explicitly disclosed in expert reports, either sua sponte or by motion of the party, or do you permit an expert to testify on matters related to but not specifically described in the reports?

(8) What do you prefer that attorneys include or not include in proposed jury instructions?

(9) What process do you use in charging the jury?

(10) Do you allow jurors to take notes during trial?

(11) Do you permit parties to provide jurors with notebooks of exhibits?

(12) Do you allow jurors to submit questions during the presentation of evidence at trial?

(13) Do you allow the parties to determine the technology they want to use
during trials? What happens when counsel cannot agree?

(14) Do you have any other tips or preferences for lawyers trying BLS cases?

MISCELLANEOUS

(1) Are there any other matters with regard to practice or procedure in your courtroom about which you would like to advise the attorneys who appear before you?

(2) Are there common deficiencies in practice that you regularly observe on
which you would like to comment?

(3) Are there any other orders, policies, or practices that you follow about which you would like to advise the members of the bar? If so, please attach copies to your response.