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 […]

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