As Judge Salinger observed in Lubin & Meyer, a party can typically make that showing where a deposition “is needed to obtain information effectively to cross-examine the expert, and that doing so will likely streamline the presentation of the case at trial.” Or as Judge Salinger wrote (quoting Nelson G. Apjohn, Further Discovery of Expert Witnesses Under Massachusetts Rule of Civil Procedure 26, 88 Mass. L. Rev. 197, 199 (2004)), “‘a court should allow a motion for further discovery under Rule 26(b)(4) if it is satisfied that the moving party’s interest is limited to obtaining the information needed for cross-examination and not designed to build her own case on the work of an opposing party’s expert.’”Lubin & Meyer, Judge Salinger ruled, failed to make the requisite Rule 26(b)(4)(A) showing.

The defendant argued that because no such deviation of the standard of care was mentioned in the plaintiff’s expert’s disclosures, the plaintiff had not complied with the obligations imposed by applicable rules of civil procedure. Massachusetts Rule of Civil Procedure 26(b)(4)(A)(i) requires the disclosure of the substance of and grounds for the opinions of an expert witness. The defendant also appealed with respect to plaintiff’s counsel’s use of Internet printouts during his cross-examination of the defendant physician.

The defendant moved to quash the subpoena.Judge Kaplan first disposed of the defendant’s argument that the plaintiff lacked standing, ruling that the plaintiff could to seek court-ordered protection from abusive discovery requests under Mass. R. Civ. P. 26(c).Judge Kaplan then turned to the scope of the subpoena, which he found was impermissibly overboard. “Filing a complaint,” he wrote, “does not provide a party with license to inspect all of a person’s private communications with others for a 20 month period in hopes that it will produce some information that might be of use in a civil law suit.”

Ruling on a motion seeking the return of inadvertently produced privilege materials, Judge Kaplan elaborated on the meaning of “inadvertent” in the context of Massachusetts Rule of Civil Procedure 26(b)(5) and so-called clawback agreements. In Vigor Works v. White Skanska, the plaintiff asked the court to order the defendant to return or destroy documents that the plaintiff inadvertently produced during discovery.

In federal district court and Massachusetts Superior Court,many of these motions must include a certification from counsel for the moving party thatcounsel forthe relevant parties have conferred and attempted to narrow the issues or resolve the dispute in good faith. See LR, D. Mass. 7.1(a)(2) ("No motion shall be filed unless counsel certify that they have conferred and have attempted in good faith to resolve or narrow the issue."); Mass. Superior Court Rule 9C ("Counsel for each of the parties shall confer in advance of serving any motion under Mass. R. Civ. P. 26 or 37 and make a good faith effort to narrow areas of disagreement to the fullest extent. . . . All such motions shall contain a certificate stating that the conference required by this Rule was held, together with the date and time of the conference and the names of all participating parties, or that the conference was not held despite reasonable efforts by the moving party to initiate the conference, setting forth the efforts made to speak by telephone or in person with opposing counsel.").