Section 1.12 - Discovery and Depositions(1) On or after the filing of any claim, the claimant may serve on any other party a request to be permitted to enter upon a designated area or areas of the employer's premises for the purposes of measuring, surveying, photographing, testing, sampling, or inspecting any designated object, record, or substance thereon.(2) On or after the filing of any claim or complaint, any party may serve on any other party, employer or medical provider rendering treatment to the claimant, a request to produce, and permit the party making the request to inspect and copy, any medical notes, treatment reports and employment records to include but not be limited to record of wages earned subsequent to the alleged injury.(3) Any request submitted under 452 CMR 1.12(1) or (2) shall set forth the item or category of items to be inspected, and describe each item or category with reasonable particularity. Such request shall be accompanied by a statement providing the relevance of the requested information to the instant case. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party on whom the request is served shall respond in writing within 20 calendar days after service of the request. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.(4) On written motion of a party, the administrative judge to whom the case has been assigned may require, by the issuance of any order, compliance with any request for discovery, including any request submitted under 452 CMR 1.12(1) or (2). Failure to comply with said order without good cause may result in assessment of costs or penalties pursuant to M.G.L. c. 152, § 14. Any motion relating to discovery must be served upon counsel for the opposing party and the administrative judge. The party receiving the motion shall, within ten days of receipt of the motion, comply with the discovery sought by motion or provide a written response opposing the motion with specificity to the other party and the administrative judge. A hearing on the motion may be required at the discretion of the administrative judge. The administrative judge may rule upon the motion without hearing
(5) At a hearing in which the case does not involve a dispute over medical issues as defined in 452 CMR 1.02, or in which the administrative judge has made a finding under M.G.L. c. 152, § 11A(2) that additional testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner, an administrative judge may authorize the taking of testimony of medical witnesses by deposition. An administrative judge shall authorize the testimony by deposition of the impartial physician. The impartial physician's testimony may not be taken prior to the first scheduled M.G.L. c. 152, § 11 or § 11A(2) hearing date as applicable unless authorized by the administrative judge. The administrative judge's authorization of a pre-hearing impartial physician deposition must be in writing. In addition to the impartial physician's deposition, an administrative judge may authorize the submission of medical testimony by deposition on motion by a party or on the judge's own initiative. The required finding on medical complexity and/or inadequacy of the impartial physician's report may be made by the administrative judge prior to the first scheduled M.G.L. c. 152, § 11 or § 11A(2) hearing date as applicable. After receipt of the impartial physician's report, upon written request of a party, the administrative judge may authorize such additional medical testimony due to inadequacy of the report or the complexity of the medical issues involved.(a) The administrative judge's authorization of additional medical testimony must be in the form of a written finding that such testimony is required due to the complexity of the medical issues involved or the inadequacy of the report of the impartial physician. Additional medical testimony may only be authorized pursuant to 452 CMR 1.00.(b) Notice of the date, time, and place of the deposition shall be provided to all opposing parties in writing with a certificate of service not less than seven calendar days before the deposition. The deposition shall be taken for use as medical evidence only and shall be admissible, in whole or in part, in proceedings before an administrative judge. No deposition of an impartial physician may exceed three hours without the agreement of all parties, including the physician, or unless authorized in writing by the administrative judge on a motion by a party. All depositions shall be submitted at the time requested by the administrative judge but no more than 60 calendar days from the close of lay testimony, provided that a party may motion the administrative judge for an extension for cause for no more than 30 calendar days. Any extension shall be authorized in writing by the administrative judge on motion by a party.(c) Where an impartial medical examiner who has submitted his or her report is rendered unavailable, or makes him or herself unavailable for deposition, either party may file a motion seeking a ruling that the impartial medical examiner is unavailable. Unless the parties otherwise agree, a ruling of unavailability resulting from reasons other than those stated in M.G.L. c. 152, § 20B, shall result in the striking from the record evidence of the impartial medical examiner's report, and a required ruling of inadequacy authorizing the parties to submit additional medical testimony. Upon such a ruling, the administrative judge shall allow a reasonable extension of time for submission of such additional medical evidence, not to exceed 45 days.(6) Medical witnesses shall be informed, before the taking of their testimony by deposition, of their right to read and sign a transcription of their testimony, or of their right to waive such reading and signing. All objections to questions and all motions relevant to testimony shall be set forth with particularity, and with the reasons in support thereof, and no administrative judge shall be required to rule on any objection or motion unless such reasons or statements have been made.(7) An attorney for any party may serve a subpoena, issued by a Notary Public, a Constable or a Justice of the Peace, stating the title of the action, name of the administrative judge, or the Senior Judge if an administrative judge has not been assigned, and shall command each person to whom it is directed to attend and give testimony or produce documents at a time and place therein specified. The Notary Public, Constable or Justice of the Peace shall issue a subpoena or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service. A subpoena may also command the person to whom it is directed to produce books, papers, documents or tangible things designated therein, but the administrative judge, upon motion at or before the time specified in the subpoena for compliance therein, may: (a) quash or modify the subpoena it if is unreasonably oppressive; or beyond the scope of discovery or seeks documents protected by privilege; or(b) condition denial of the motion upon the advancement of the person in whose behalf the subpoena is issued of the reasonable cost for producing the books, papers, documents or tangible things. Notice of the subpoena must be given to counsel for each party to the action at least two business days prior to service. At the option of the party, a subpoena commanding the production of documents or other tangible things may include a provision stating that for the convenience of the witness and in lieu of appearance at the proceeding, the requested documents may be provided at a date, time and place specified in the subpoena. Any party receiving documents or other tangible things in response to a Subpoena shall provide a complete copy of the response to all parties to the action prior to commencement of the proceeding. Any documents obtained by subpoena not in compliance with this regulation shall not be admissible in any proceeding except by agreement of the parties, or as allowed by the administrative judge for just cause. Failure to comply with 452 CMR 1.12(7) may subject the attorney to the provisions of M.G.L. c. 152, § 14.
Amended by Mass Register Issue 1331, eff. 1/27/2017.