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18
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
NO, 2084-CV-02375-BLS1
E-FILED 12/06/2021
TRANSFORMATIVE HEALTHCARE, INC. SL
AND FALLON AMBULANCE SERVICE, LLC,
Plaintiffs,
v.
PATRICK SEAN TYLER AND RANDSECO, LLC,
Defendants.
PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF
MOTION FOR LETTER ROGATORY
Pursuant to G.L. c. 223A § 10, Mass. R. Civ. P. 28(b), and Superior Court Rule 9A(a)(3),
Plaintiffs Transformative Healthcare, Inc. and Fallon Ambulance Service, LLC hereby reply to
Defendants’ Opposition to Plaintiffs’ Motion for Letter Rogatory (the “Opposition”).
Defendants put forth two reasons for denial, both of which are incorrect.
Defendants first claim that Plaintiffs’ counsel failed to comply with Rule 9C. To the
contrary, when undersigned Plaintiffs’ counsel learned in October 2021 that Mr. Sankranti is
now a former employee of Randseco who lives in British Columbia, Canada, they reached out to
counsel for Randseco to inquire whether they could arrange for Mr. Sankranti to be made
available for deposition, which is the only accommodation the parties could have agreed between
themselves and therefore the only relevant question. Indeed, Defendants’ own opposition makes
clear the futility of further conferencing: Defendants concede that if Plaintiffs’ counsel hadsought to confer further, their only response would have been that the request was untimely, and
to challenge Plaintiffs to justify themselves. Opp’n at 2. Regardless of whether Plaintiffs
provided a justification that Defendants might have found convincing, this would not have
narrowed the issues before the court. As defendants concede, Rule 9C does not require parties to
burn time in conferencing that would be futile. See, e.g., Hope v. Double E Corp., No. 99-
3817H, 2002 Mass. Super. LEXIS 147, at *10 (Mass. Super. Ct. Feb. 12, 2002) (allowing
discovery motion when Rule 9C conference “would serve no purpose in the instant case”
because “such a conference would not serve Rule 9CC’s purpose to ‘narrow [the] areas of
disagreement’”); see also Cutler Constr., Inc. v. Garner, No. 10-P-769, 2011 Mass. App. Unpub.
LEXIS 439, at *1-2 (Mass. App. Ct. Apr. 7, 2011) (1:28) (finding that when parties conferred
about discovery issues “[t]he judge was entitled to conclude that these discussions served as the
equivalent of a rule 9C conference, even if they were not identified as such by the parties at the
time. . . . [I]t was within the judge’s discretion to consider the certification requirement
satisfied”).
Secondly, Defendants claim that the motion is untimely, citing the court’s directive that
all fact discovery shall be “noticed and taken” by the fact discovery deadline of November 12,
2021. Defendants ignore the fact that Plaintiffs did indeed notice Mr. Sankranti’s deposition for
a date well before the discovery deadline: On October 7, 2021, plaintiffs noticed his deposition
for November 2, 2021. See Affidavit of James Fullmer, {| 5 & Ex. C (deposition notice).
Plaintiffs did this because in December, 2020, defendant Randseco had identified Mr. Sankranti
as a then-current employee in its interrogatory responses. See Fullmer Aff., 2 & Ex. A
(Response No. 7, stating that Mr. Sankranti was a “Developer” at Randseco and had been so
since 2014, with no end date or indication he was a former employee), and therefore reasonablyassumed he would be made available remotely like other Randseco witnesses. Defendants did
not update this interrogatory response or otherwise inform Plaintiff's counsel at any time
between December 2020 and October 2021 that Mr. Sankranti was a former employee outside
the United States. and could not be made available by Randseco, waiting instead until after
Plaintiffs’ counsel served the notice. It is disingenuous for Defendants to suggest that Plaintiffs’
motion should be denied because it does not “even have a proposed date for Mr. Sankranti’s
deposition.” Opp’n at 3. As Defendants well know, initiating a deposition outside the United
States is a complex process that takes significant time, even once a court has issued a letter
rogatory. See, e.g., Shinya Imamura y. GE, 371 F. Supp. 3d 1, 13 (D. Mass. 2019) (describing
process of obtaining a letter rogatory as “burdensome and time-consuming”). Accordingly,
Plaintiffs are not yet in a position to propose a date for the deposition, nor would it have mattered
whether they served their motion a few weeks earlier as Defendants suggest they should have.
Had Plaintiffs been informed earlier in the year, with time to seek a letter rogatory, that Mr.
Sankranti was a foreign citizen who could not be made available by Defendants—and had.
Plaintiffs then delayed acting until the close of discovery, Defendants’ argument might carry
force. In the present circumstances, however, Plaintiffs suggest that they have “good cause”
within the meaning of Superior Court Standing Order 1-88(D)(1), and the Court should grant the
current motion notwithstanding the passing of the fact discovery deadline.!
' Plaintiffs note that due to other scheduling difficulties, substantial other discovery had taken
place after November 12, 2021, including production of further documents by both sides and
three depositions of principal witnesses (Mr. Thompson of Randseco on November 22, defendant
Tyler on November 23, and the designee for both plaintiff corporations on December 1). This
discovery has been by agreement of all parties, rendering suspect Defendants’ current request for
strict enforcement of the deadline.Dated: December 6, 2021
Respectfully submitted,
TRANSFORMATIVE HEALTHCARE INC.
FALLON AMBULANCE SERVICE, LLC
By their attorneys,
/s/ James S. Fullmer
Michael P. Boudett, BBO #558757
(mboudett@foleyhoag.com)
James S. Fullmer, BBO #696682
(jfullmer@foleyhoag.com)
Foley Hoag LLP
155 Seaport Boulevard
Boston, MA 02210
(617) 832-1000CERTIFICATE OF SERVICE
I, James S. Fullmer, hereby certify that on December 6, 2021, I caused a copy of the
foregoing document to be served via email on:
Shepard Davidson
(sdavidson@burnslev.com)
Laura Lee Mittelman
(Imittelman@burnslev.com)
Burns & Levinson LLP
125 High Street
Boston, MA 02110
/s/ James S. Fullmer
James S. Fullmer
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18 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO, 2084-CV-02375-BLS1 E-FILED 12/06/2021 TRANSFORMATIVE HEALTHCARE, INC. SL AND FALLON AMBULANCE SERVICE, LLC, Plaintiffs, v. PATRICK SEAN TYLER AND RANDSECO, LLC, Defendants. PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR LETTER ROGATORY Pursuant to G.L. c. 223A § 10, Mass. R. Civ. P. 28(b), and Superior Court Rule 9A(a)(3), Plaintiffs Transformative Healthcare, Inc. and Fallon Ambulance Service, LLC hereby reply to Defendants’ Opposition to Plaintiffs’ Motion for Letter Rogatory (the “Opposition”). Defendants put forth two reasons for denial, both of which are incorrect. Defendants first claim that Plaintiffs’ counsel failed to comply with Rule 9C. To the contrary, when undersigned Plaintiffs’ counsel learned in October 2021 that Mr. Sankranti is now a former employee of Randseco who lives in British Columbia, Canada, they reached out to counsel for Randseco to inquire whether they could arrange for Mr. Sankranti to be made available for deposition, which is the only accommodation the parties could have agreed between themselves and therefore the only relevant question. Indeed, Defendants’ own opposition makes clear the futility of further conferencing: Defendants concede that if Plaintiffs’ counsel hadsought to confer further, their only response would have been that the request was untimely, and to challenge Plaintiffs to justify themselves. Opp’n at 2. Regardless of whether Plaintiffs provided a justification that Defendants might have found convincing, this would not have narrowed the issues before the court. As defendants concede, Rule 9C does not require parties to burn time in conferencing that would be futile. See, e.g., Hope v. Double E Corp., No. 99- 3817H, 2002 Mass. Super. LEXIS 147, at *10 (Mass. Super. Ct. Feb. 12, 2002) (allowing discovery motion when Rule 9C conference “would serve no purpose in the instant case” because “such a conference would not serve Rule 9CC’s purpose to ‘narrow [the] areas of disagreement’”); see also Cutler Constr., Inc. v. Garner, No. 10-P-769, 2011 Mass. App. Unpub. LEXIS 439, at *1-2 (Mass. App. Ct. Apr. 7, 2011) (1:28) (finding that when parties conferred about discovery issues “[t]he judge was entitled to conclude that these discussions served as the equivalent of a rule 9C conference, even if they were not identified as such by the parties at the time. . . . [I]t was within the judge’s discretion to consider the certification requirement satisfied”). Secondly, Defendants claim that the motion is untimely, citing the court’s directive that all fact discovery shall be “noticed and taken” by the fact discovery deadline of November 12, 2021. Defendants ignore the fact that Plaintiffs did indeed notice Mr. Sankranti’s deposition for a date well before the discovery deadline: On October 7, 2021, plaintiffs noticed his deposition for November 2, 2021. See Affidavit of James Fullmer, {| 5 & Ex. C (deposition notice). Plaintiffs did this because in December, 2020, defendant Randseco had identified Mr. Sankranti as a then-current employee in its interrogatory responses. See Fullmer Aff., 2 & Ex. A (Response No. 7, stating that Mr. Sankranti was a “Developer” at Randseco and had been so since 2014, with no end date or indication he was a former employee), and therefore reasonablyassumed he would be made available remotely like other Randseco witnesses. Defendants did not update this interrogatory response or otherwise inform Plaintiff's counsel at any time between December 2020 and October 2021 that Mr. Sankranti was a former employee outside the United States. and could not be made available by Randseco, waiting instead until after Plaintiffs’ counsel served the notice. It is disingenuous for Defendants to suggest that Plaintiffs’ motion should be denied because it does not “even have a proposed date for Mr. Sankranti’s deposition.” Opp’n at 3. As Defendants well know, initiating a deposition outside the United States is a complex process that takes significant time, even once a court has issued a letter rogatory. See, e.g., Shinya Imamura y. GE, 371 F. Supp. 3d 1, 13 (D. Mass. 2019) (describing process of obtaining a letter rogatory as “burdensome and time-consuming”). Accordingly, Plaintiffs are not yet in a position to propose a date for the deposition, nor would it have mattered whether they served their motion a few weeks earlier as Defendants suggest they should have. Had Plaintiffs been informed earlier in the year, with time to seek a letter rogatory, that Mr. Sankranti was a foreign citizen who could not be made available by Defendants—and had. Plaintiffs then delayed acting until the close of discovery, Defendants’ argument might carry force. In the present circumstances, however, Plaintiffs suggest that they have “good cause” within the meaning of Superior Court Standing Order 1-88(D)(1), and the Court should grant the current motion notwithstanding the passing of the fact discovery deadline.! ' Plaintiffs note that due to other scheduling difficulties, substantial other discovery had taken place after November 12, 2021, including production of further documents by both sides and three depositions of principal witnesses (Mr. Thompson of Randseco on November 22, defendant Tyler on November 23, and the designee for both plaintiff corporations on December 1). This discovery has been by agreement of all parties, rendering suspect Defendants’ current request for strict enforcement of the deadline.Dated: December 6, 2021 Respectfully submitted, TRANSFORMATIVE HEALTHCARE INC. FALLON AMBULANCE SERVICE, LLC By their attorneys, /s/ James S. Fullmer Michael P. Boudett, BBO #558757 (mboudett@foleyhoag.com) James S. Fullmer, BBO #696682 (jfullmer@foleyhoag.com) Foley Hoag LLP 155 Seaport Boulevard Boston, MA 02210 (617) 832-1000CERTIFICATE OF SERVICE I, James S. Fullmer, hereby certify that on December 6, 2021, I caused a copy of the foregoing document to be served via email on: Shepard Davidson (sdavidson@burnslev.com) Laura Lee Mittelman (Imittelman@burnslev.com) Burns & Levinson LLP 125 High Street Boston, MA 02110 /s/ James S. Fullmer James S. Fullmer