DaRosa, et al. v. City of New Bedford (Lawyers Weekly No. 10-081-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11759 JOHN DaROSA & others[1] vs. CITY OF NEW BEDFORD; MONSANTO COMPANY & others,[2] third-party defendants. Bristol. January 8, 2015. – May 15, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Public Records. Municipal Corporations, Public record. Attorney at Law, Work product, Attorney-client relationship. Privileged Communication. Practice, Civil, Discovery. Civil action commenced in the Superior Court Department on October 24, 2008. A motion to strike privilege and work product objections to certain documents and to compel their production, filed on May 15, 2014, was heard by Richard T. Moses, J. An application for leave to prosecute an interlocutory appeal was allowed by Judd J. Carhart, J., in the Appeals Court, and the case was reported by him to that court. The Supreme Judicial Court granted an application for direct appellate review. Shephard S. Johnson, Jr., for city of New Bedford. Mary K. Ryan (Cynthia M. Guizzetti with her) for AVX Corporation. John J. Gushue, for ABC Disposal Service, Inc., was present but did not argue. Mark P. Dolan & Stanley F. Pupecki, for Tutor Perini Corporation, submitted a brief. Michael R. Perry & Aaron D. Rosenberg, for NSTAR Electric Company & another, submitted a brief. John J. Davis & John M. Wilusz, for Massachusetts Municipal Association, amicus curiae, submitted a brief. Martha Coakley, Attorney General, & Judy Zeprun Kalman, for the Commonwealth, amicus curiae, submitted a brief. Brandon H. Moss, for Massachusetts Municipal Lawyers Association, Inc., amicus curiae, joined in a brief. GANTS, C.J. In General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801 (1999) (General Electric), we held that “materials privileged as work product . . . are not protected from disclosure under the public records statute unless those materials fall within the scope of an express statutory exemption.” We noted that there is not an express statutory exemption for work product and rejected the claim that work product is protected from disclosure by an implied exemption. See id. at 801-806. In General Electric, the parties were not yet in litigation, so the work product was sought under the public records act rather than in discovery. And in General Electric we did not reach the issue whether the work product would be protected from disclosure under the “policy deliberation” […]