Mooney, et al. v. Diversified Business Communications, et al. (Lawyers Weekly No. 12-116-17)
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
SUCV2016-3726-BLS2
JOHNJ. MOONEY and MORGAN D. WHEELOCK,
Plaintiffs
vs.
DIVERSIFIED BUSINESS COMMUNICATIONS, DBC PRI-MED, LLC,
THEODORE WIRTH, KATHY WILLING, and OAKLEY DYER
Defendants
MEMORANDUM OF DECISION AND ORDER
ON REMAING ISSUES RELATED TO
PLAINTIFFS’ MOTION TO COMPEL
After a hearing on July 11, 2017, this Court allowed that part of the plaintiffs’ Motion to Compel which concerned the production of certain Board of Directors minutes of the defendant Diversified Communications. See Memorandum of Decision and Order on Plaintiffs’ Motion to Compel, dated July 20, 2017. As to the remainder of the motion, this Court concluded that the defendants could withhold certain documents based on a claim of privilege, provided that the privilege had been properly asserted as to those documents actually withheld (represented by both sides to be a couple of dozen); that determination would be made by the Court after it reviewed those documents in camera. The Court also allowed the defendants time to respond to a last-minute assertion by the plaintiffs that any claim of privilege had been waived. After a flurry of additional briefing and after conducting an in camera review, this Court concludes that the defendants need not to produce any additional documents and that the plaintiffs must return to the defendants those documents that had been produced inadvertently.
In reaching this decision, the Court has reviewed the 28 documents listed on the defendants’ privilege log as being withheld in their entirety. That review showed that — notwithstanding the plaintiffs’ arguments to the contrary – every document involved or discussed communications between and among corporate representatives of the defendant Pri-Med and Pri-Med’s counsel in connection with litigation threatened by a former Pri-Med employee Lynn Long. After the July 11 hearing, the plaintiffs submitted an additional brief that largely reargued their position that the privilege should not, as a matter of law, prevent plaintiffs from obtaining the documents. Plaintiffs also argued — for the first time — that this Court should also review in camera documents that had been produced by defendants but in redacted form. There being no suggestion that defendants are asserting a privilege without any factual basis for doing so, this Court sees no need to expand its review to these additional documents. Defendants have produced thousands of documents in a fairly short time frame and have appeared to have worked in good faith and with due diligence to fulfill their discovery obligations. Continuing judicial oversight of the discovery process is neither a wise use of judicial resources nor necessary under the circumstances.
Just as plaintiffs have sought to expand the number of documents subject to in camera review, so too have they expanded on their claim of waiver. The waiver argument was raised for the first time in plaintiffs’ reply brief in support of their Motion to Compel. At the July 11 hearing, plaintiffs’ counsel held up a small number of documents that he represented had been produced to plaintiffs in the course of discovery that would support the plaintiffs’ position on waiver. As the defendants point out in their post-hearing briefing, however, these documents had been listed on their privilege log as being partially withheld (that is, produced in redacted form). Defense counsel produced these documents in unredacted form by mistake – understandable given the sheer size of the overall production (35,000 documents in all). This Court concludes that this production was inadvertent and therefore that no waiver has occurred. Responding, plaintiffs’ counsel now asserts that there are over 500 more documents that were produced to plaintiffs’ counsel that either support plaintiffs’ claim that there has been a waiver of the privilege or that show that defendants never believed that a privilege could be asserted against plaintiff John Mooney in the first place, since he was at one time Pri-Med’s CEO. This Court declines to revisit its earlier decision regarding the applicability of privilege as a bar to certain discovery in this case. As to those documents that the defendants produced after this litigation began that had been identified on their privilege log as being redacted but were nevertheless produced in unredacted form, plaintiffs’ counsel is hereby ORDERED to return those documents to defense counsel and not to use or disclose them to anyone else, as required by Rule 26(b)((5)(B), Mass.R.Civ.P.
______________________________________
Janet L. Sanders
Justice of the Superior Court
Dated: July 24, 2017