Cahaly, et al. v. Benistar Property Exchange Trust Company, Inc., et al. (Lawyers Weekly No. 11-062-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑956 Appeals Court GAIL A. CAHALY & others[1] vs. BENISTAR PROPERTY EXCHANGE TRUST COMPANY, INC., & others.[2] No. 12‑P‑956. Suffolk. December 2, 2013. ‑ June 6, 2014. Present: Kantrowitz, Graham, & Meade, JJ. Attorney at Law, Work product. Penalty. Practice, Civil, New trial. Civil actions commenced in the Superior Court Department on January 9, 16, 22, and 23, 2001; February 6, 2001; September 20, 2001; and April 30, 2002. Following review by the Supreme Judicial Court, 451 Mass. 343 (2008), motions for sanctions and for a new trial were heard by Stephen E. Neel, J. Anthony R. Zelle for Gail A. Cahaly & others. Michael B. Keating for the intervener. Brooks L. Glahn for Benistar Property Exchange Trust Company, Inc., & others. MEADE, J. The plaintiffs appeal from the denial of their motion for sanctions against Bingham McCutchen LLP (Bingham), intervener, the law firm that defended Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill), in the 2002 jury trial of this action. The plaintiffs claim that in that litigation Bingham wrongfully withheld documents relevant to the issue whether Merrill, in handling the accounts of Benistar Property Exchange Trust Company, Inc. (Benistar), knew that Benistar was trading with money belonging to third parties. We hold that Bingham lacked an adequate legal basis, under the guise of the work product doctrine, for its decisions to withhold information that Merrill employees had viewed certain Benistar Web pages describing its business as an intermediary for third-party funds and then to present a defense claiming that no Merrill employees had viewed the very same Web pages. As a result, we vacate that portion of the final judgment entering judgment in favor of Bingham on the plaintiffs’ motion for sanctions. As explained below, there remain certain issues that require resolution by a fact finder, and thus, we remand for further proceedings consistent with this opinion. Background. For background regarding the 2002 trial and the underlying dispute, we refer to Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343 (2008) (Cahaly), in which the Supreme Judicial Court affirmed the order of the Superior Court judge granting the plaintiffs a new trial. The documents at issue here came to light during the preparation of the second trial in 2009, when Merrill, then represented by […]