Legal Memorandum: Protective Order to Avoid Deposing in MA

Issue: Under Rule 26 of the Massachusetts Rules of Civil Procedure, under what circumstances is a party entitled to a protective order to avoid being deposed?

Rule 26(c) provides that for good cause shown, the court may make any order that justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including that the requested discovery not be allowed.  Mass. R. Civ. P. 26(c).  Thus, for example, a protective order staying all discovery until the court could act on the defendant’s motion for summary judgment was proper because the defendant was entitled to judgment as a matter of law, E.A. Miller, Inc. v. South Shore Bank, 405 Mass. 95, 539 N.E.2d 519 (1989), and such an order was justified to prevent an out-of-state attorney from deposing a party when that attorney was a potential witness in the case, Merles v. Lerner, 391 Mass. 221, 461 N.E.2d 772 (1984).  When, however, no good cause for the issuance of a protective order is shown, the request for such an order must be denied.

Rule 26(c) of the Massachusetts Rules of Civil Procedure substantially copies Federal Rule 26(c).  Mass. R. Civ. P. 26 Reporters’ Notes.  Accordingly, the cases decided under the comparable Federal Rule provide guidance as to what constitutes good.  The cases applying the Federal Rule counterpart to Rule 26(c) make it clear that it is very unusual for a trial court to forbid the taking of a deposition altogether, and that absent extraordinary circumstances such an order is in error.  See Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); Cook v. […]