Motion for Spousal Support in Connell, William C. vs. Morrissey, Robert J.| Trellis.Law

On March 07, 2023 a Motion-Secondary was filed involving a dispute between Connell, William C., and Morrissey, Robert J., for Contract / Business Cases in the District Court of Middlesex County.

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Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659
RECEIVED
9.1
10/12/2023

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
Docket No. 2381CV00659
~
WILLIAM C. CONNELL,
Plaintiff,

ROBERT J. MORRISSEY,

Defendant.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HIS
MOTION TO COMPEL

FW
Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659

TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT .
BACKGROUND
LEGAL STANDARD
ARGUMENT,
A. The Court should order Morrissey to perform a comprehensive search of relevant
documents in his possession, custody, and control to supplement his initial discovery
responses.

B. The Court should order Morrissey to produce documents and materials responsive to
Connell’s specified Request and Interrogatories, as they are relevant to the claims pled in the
Complaint and defenses raised in the Answer.
CONCLUSION. 11
Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659

TABLE OF AUTHORITIES
Page(s)
CASES

Ayash v. Dana-Farber Cancer Institute,
46 Mass. App. Ct. 384 (1999)... 10

Bratt v. International Business Machines Corp.,
392 Mass. 508 (1984). 10

Fordham v. Simmons Agency, Inc.,
2002 WL 31356172 (Mass. Super. Ct. Oct. 10, 2002) 10,11

G & F Indus., Inc. v. Jeffco, Inc.,
2006 WL 306893 (Mass, Super. Ct. Feb. 2, 2006).

Hope v. Double E Corp., Inc.,
2002 WL. 1020750 (Mass. Super. Ct. Feb. 14, 2022)

Makrokanis v. Locust Cab, Inc.,
2000 WL 1677597 (Mass. Super. Ct. Oct. 25, 2000) 7,10

Solimene v. B. Grauel & Co., K.G.,
399 Mass. 790 (1987)

Taglieri v. Talieri,
2021 WL 4514763 (Mass. Super. Ct. May 13, 2021).

OTHER AUTHORITIES

Mass. R. Civ. P. 26(b)(1)

Mass. R. Civ. P. 26(c) 10

Mass. R. Civ. P. 34(a)(1)
Mass. R. Civ. P. 37(a)(2) 1,6

Mass. Sup. Ct. Rule 30A(3)(c)

A
Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659

PRELIMINARY STATEMENT.

This case involves Robert Morrissey’s breaches of fiduciary duty and misrepresentations

to William Connell that persuaded Connell not to seek a prenuptial agreement before Connell

married Morrissey’s daughter. Given Morrissey’s standing with the Connell family and role as a

trustee of trusts for which Connell was a beneficiary, this was not a simple conversation between

Connell and his future father-in-law looking out for his daughter. Morrissey was conflicted, knew

he was conflicted, and mislead Connell anyway. Now that Connell is divorcing his wife Pamela,

and Pamela is going after the very trust assets Connell hoped to protect with a prenup, Connell

seeks to recover for the injury Morrissey caused him. Morrissey refused to toll these claims

pending resolution of the divorce and this litigation followed. Connell served Morrissey with

discovery, Morrissey objected, the parties met and conferred, and are at an impasse.

This motion is necessary for two reasons. First, Morrissey has refused to conduct an actual

search for documents or information, and relies only on his memory in asserting that he has nothing

responsive to offer. Morrissey should be ordered to conduct a reasonable search for responsive

information.

Second, Morrissey has objected on relevance grounds to requests for documents and

information about facts alleged in the complaint and largely denied by Morrissey. Since those

facts are at issue in this case, and are relevant for a number of reasons, Morrissey should be

required to produce responsive documents and information.

Pursuant to Mass. R. Civ. P. 37(a)(2), Connell hereby moves to compel Morrissey to (1)

conduct an adequate search for materials responsive to Connell’s discovery requests and (2)

produce relevant documents and answers in response to Connell’s Requests for Production and

Interrogatories.
Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659

BACKGROUND

As a trusted advisor to the Connell family and father to Pamela, Defendant Robert J.

Morrissey played the decisive role in Connell not insisting upon a prenuptial agreement before

Connell married Pamela in 2006. Morrissey has been an prominent figure in the Connell family

for more than thirty years since serving on the advisory board of Connell’s father’s company and

serving as trustee of dozens of Connell family trusts. Compl. J 13. For example, Morrissey served

as trustee of the William C. Connell 1989 Trust (the “1989 Trust”) for Connell since Connell was

nineteen years old. Jd. { 15. Outside the Connell family, Morrissey also held during the relevant

time a number of fiduciary positions in the community, including as Trustee of Boston College

and as Chairman of its Investment and Endowment Committee, as a member of the Finance

Council of the Archdiocese of Boston and Chairman of its Investment Committee, as Chairman of

the Board of Directors of Belmont Savings Bank, and as a Director or Trustee of several private

and public funds, trusts, mutual funds, and foundations. /d. 9. In addition to serving on their

boards, Morrissey is known as a substantial donor to these local institutions and many others. Id.

q 19.

This appearance of great wealth, coupled with his experience and status as trustee of the

Connell family trusts, lent credibility to Morrissey’s representations and advice to Connell in 2006.

Prior to marrying Pamela, Connell sought Morrissey’s advice regarding the need for a prenuptial

agreement. Connell desired a prenuptial agreement specifically to minimize any risk to his

interests in the Connell family trusts, the assets Morrissey swore to protect. /d. 24. This was not

the first time Connell had relied on Morrissey’s guidance—the year prior Connell turned to

Morrissey before purchasing land and before joining Oyster Harbors Club. Id. { 18, Pamela also

told Connell that she would follow her father’s direction about a prenuptial agreement, and taking
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Docket Number 2381CV00659

all of this together, Connell was reasonable in seeking and relying upon Morrissey’s advice

regarding the prenuptial agreement. Jd. { 21.

Morrissey told Connell both personally and through Connell’s lawyer that a prenuptial

agreement was not necessary to protect Connell’s family trust assets. /d. §{] 23-29. Morrissey also

stated that he was the only person who knew both sides of Connell and Pamela’s financial

situations, indicating that Pamela was financially set and would have no need to seek any share of

the Connell family trust assets. Jd. Given Morrissey’s status as an established trust and estates

attorney, decades of service as trustee of the Connell family trusts, experience in fiduciary

positions for local private and public institutions, and overall appearance of significant personal

success, Connell reasonably believed Morrissey’s advice regarding a prenuptial agreement and

entered into his marriage with Pamela in 2006 without one in place. Id. 432. After thirteen years

of marriage, Connell filed for divorce in March 2020. In August 2020, Pamela sought to join the

Connell trustees in the case to seek distributions from the 1989 Trust; the dispute over the Connell

family trusts remain the key financial sticking point in the divorce. Id. 39.

Connell offered to toll these claims until the divorce was resolved, but Morrissey swiftly

refused, opting for resolution through litigation instead. Connell filed this action on March 7, 2023

for breach of fiduciary duty, fraud, and gross negligence. Morrissey answered on May 1, 2023.

On May 25, 2023, Connell served Morrissey with his First Set of Interrogatories

(“Interrogatories”) and his First Set of Requests for Production (“Requests”) to obtain certain

limited materials central to Connell’s claims. See Mooney Decl. Exs. 1-2. These discovery

requests seek information relating to Morrissey’s prenuptial advice in 2006, as well as Morrissey’s

compensation as a professional trustee and personal donations to charitable institutions. This

information targets critical aspects of the Complaint as they relate to Connell’s reasonable reliance
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Docket Number 2381CV00659

on Morrissey’s counsel. These documents and related information are readily available to

Morrissey and cannot be obtained elsewhere. As such, Morrissey is uniquely positioned to provide

material information relating to the decision to forego a prenuptial agreement, as well as

information relating to his wealth and reliable reputation in the community, factors upon which

Connell relied when seeking Morrissey’s advice.

In response, and after a requested extension, Morrissey objected to Connell’s targeted

requests on relevancy, impermissibility, and burden grounds. See id. Exs. 3-4. Aside from a

limited response to Request No. 18, Morrissey produced no documents in response to the Requests,

asserting that the Requests are overbroad, irrelevant, and “intended to annoy, harass, and oppress”

him, and that there were no responsive documents in any event. Id. Ex. 3. Morrissey responded

similarly to the Interrogatories by providing limited answers. In his response to the Interrogatories,

Morrissey reiterated general objections that the Interrogatories are overbroad, irrelevant, and

meant “only to annoy, embarrass, oppress, or unduly burden” him. Id. Ex. 4.

Upon receiving and analyzing Morrissey’s discovery responses, Connell requested a meet-

and-confer conference. The parties conferred on July 28, 2023. Through the meet and confer, and

in correspondence that follows, the issues have been narrowed to those raised in this Motion.

The first area of dispute is the scope of Morrissey’s search for documents which consisted

of Morrissey trying to remember whether there were any documents and informing his counsel

there were none.

The second area of dispute relates to one Request and two Interrogatories to which

Morrissey interposed specific objections and has withheld documents on the basis of those

objections. See Mooney Decl. Exs. 3-4. These include:
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Superior Court - Middlesex
Docket Number 2381CV00659

Request No. 19: Documents sufficient to reflect all charitable contributions made
from Your personal funds during the period of time You were serving as a trustee
of any Connell family trust.

Interrogatory No. 14: Identify the amounts contributed from Your personal funds
to the charitable institutions listed in Paragraphs 51, 52, or 53 of the Complaint.

Interrogatory No. 16: Identify how much compensation You earned from serving
as a trustee of any fund within the Gabelli Funds or Gabelli family of funds and
identify how much money from any institution or entity for which you served as a
trustee, director, or in another fiduciary capacity was managed by GAMCO
Investors, Inc. or any affiliate of GAMCO Investors, Inc., including but not limited
to GAMCO Asset Management or Gabelli Funds.

Morrissey refuses to produce documents based on relevancy grounds and claims that these

Request and Interrogatories were “intended only to annoy, embarrass, oppress and unduly burden

this Defendant.” Id. Exs. 3-4. To the contrary, the information sought in these requests is relevant

on a number of grounds which demonstrate the reasonableness of Connell’s reliance on

Morrissey’s advice regarding the prenuptial agreement. This information is relevant to Connell’s

claims and should be produced.

Connell respectfully requests an order compelling Morrissey to (1) conduct an adequate

search for materials responsive to Connell’s discovery requests and (2) produce documents and

answers in response to Request No. 19 and Interrogatories No. 14 and 16.

LEGAL STANDARD

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to

the subject matter involved in the pending action, whether it relates to the claim or defense of the

party seeking discovery or to the claim or defense of any other party.” Mass. R. Civ. P. 26(b)(1).

“It is not ground for objection that the information sought will be inadmissible at the trial if the

information sought appears reasonably calculated to lead to the discovery of admissible

evidence.” Id. If the non-requesting party fails to produce the documents, the rules allow the
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Docket Number 2381CV00659

party requesting discovery to “move for an order compelling an answer or a designation or an

order compelling inspection in accordance with the request.” Mass. R. Civ. P. 37(a)(2).

ARGUMENT

A. The Court should order Morrissey to perform a comprehensive search of
relevant documents in his possession, custody, and control to supplement his
initial discovery responses.

Morrissey’s responses to Connell’s Requests and Interrogatories are inadequate because

Morrissey failed to conduct any kind of search for documents in his possession, custody, or

control. See Mass. R. Civ. P. 34(a)(1). “In the initial written response, the responding party

shall articulate with clarity the scope of the search conducted or to be conducted.” Mass. Sup.

Ct. Rule 30A(3)(c). “If the scope of the search does not include all locations, including

electronic storage locations, where responsive documents or things reasonably might be found,

the responding party shall explain why these locations have been excluded from the scope of the

search.” Id.

Morrissey did not describe his search in writing but admitted during a meet and confer

that he had conducted no search at all. Instead, Morrissey thought about whether there were

responsive documents, produced the small number he could think of, and otherwise concluded

there were none. This search of Morrissey’s memory is inadequate. See e.g., Taglieri v. Talieri,

2021 WL 4514763, at *1 (Mass. Super. Ct. May 13, 2021) (court ordered defendants to “perform

a comprehensive search of the documents in their possession, custody or control, including but

not limited to any corporate records relating to entities under their control[.]”). This Court

should order Morrissey to conduct a search of documents in his possession, custody, and control

to identify responsive documents.
Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659

Morrissey’s relevance objections should be overruled and he should be ordered to make a

full response to Connell’s requests. “A request for discovery should be considered relevant if there

is any possibility that the information sought may be relevant to the subject matter of the action.”

Hope v. Double E Corp., Inc., 2002 WL 1020750, at *4 (Mass. Super. Ct. Feb. 14, 2022) (internal

quotations omitted); G & F Indus., Inc. v. Jeffco, Inc., 2006 WL 306893, at *1 (Mass. Super. Ct.

Feb. 2, 2006) (“Discovery should ordinarily be allowed under the concept of relevancy unless it is

clear that the information sought can have no possible bearing upon the subject matter of the

action.”) (internal quotations omitted). The scope of discovery is wide ranging, and trial courts

have broad power to control its scope. Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 799

(1987). “Discovery is not limited to issues raised by the pleadings, since discovery itself is

designed to help define and clarify the issues.” Makrokanis v. Locust Cab, Inc., 2000 WL

1677597, at *1 (Mass. Super. Ct. Oct. 25, 2000).

Here, Morrissey objected to the relevance of the three requests at issue. See Mooney

Decl. Ex. 3-4. Specifically:

Request No. 19: Documents sufficient to reflect all charitable contributions made
from Your personal funds during the period of time You were serving as a trustee
of any Connell family trust.

Response_to Request No. 19: This Defendant incorporates the General
Objections above as though fully set forth herein. This Defendant further
objects on the grounds that the request is not relevant to the subject matter
involved in the pending action and is not calculated to lead to the discovery of
admissible evidence. The Request is intended only to annoy, embarrass,
oppress and unduly burden this Defendant.

Interrogatory No. 14: Identify the amounts contributed from Your personal funds
to the charitable institutions listed in Paragraphs 51, 52, or 53 of the Complaint.
Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659

Response to Interrogatory No. 14: The above General Objections are repeated
as though fully set forth herein. This Defendant objects to this Interrogatory,
which is not relevant to any good faith subject matter involved in the pending
action and is not calculated to lead to the discovery of admissible evidence.
The Interrogatory is intended only to annoy, embarrass, oppress and unduly
burden this Defendant.

Response to Interrogatory No. 16; The above General Objections are repeated
as though fully set forth herein. This Defendant objects to this Interrogatory,
which is not relevant to any good faith subject matter involved in the pending
action and is not calculated to lead to the discovery of admissible evidence.
The Interrogatory is intended only to annoy, embarrass, oppress and unduly
burden this Defendant.

These requests are relevant for at least six reasons. First, this information illustrates

Morrissey’s reputation in the community as a prominent and successful businessman and trustee,

which bears on the reasonableness of Connell’s reliance on Morrissey’s advice regarding the

prenuptial agreement. Morrissey has challenged the reasonableness of Connell’s actions and

Connell is entitled to discovery on the issue.

Second, when Morrissey dissuaded Connell from entering into a prenuptial agreement,

Morrissey asserted superior knowledge of the finances “on both sides” of the Connell and

Morrissey families, insinuating that the Morrisseys would have no need to seek Connell family

money in the event of a divorce. Morrissey’s appearance of significant wealth and success is

therefore relevant because it reinforces Connell’s reasonable belief that Pamela would have no

need to go after Connell family trust assets in the event they got divorced.
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Third, the information sought in these discovery requests speaks to Morrissey’s pattern of

using his fiduciary positions to advance his or his family’s interests or reputation. This behavior

created a perception of wealth for Morrissey, upon which Connell relied when foregoing the

prenuptial agreement with Pamela. Similarly, these interrogatory requests specifically relate to

allegations in the complaint regarding Morrissey’s actions as a trustee. While Morrissey has

denied these allegations, they have not been stricken and are therefore presumptively proper.

Should Morrissey claim that he personally made the donations referenced in the Complaint,

Connell is entitled to test Morrissey’s assertions and the information sought in these discovery

requests will help Connell do so.

Fourth, this information relates to one theory of Morrissey’s motive for his inaccurate

advice to Connell. As an experienced lawyer, Morrissey likely knew that full, mutual disclosure

of finances is a prerequisite to enforcement of a prenuptial agreement. If, contrary to the image

he wished to project, Morrissey was not as rich as he wanted people to believe, all that would

have come out in negotiations over prenup. These requests go to the honesty of Morrissey’s

image, and whether he had a motivation to dissuade Connell from pressing Pamela for a prenup.

Fifth, documents and information regarding Morrissey’s appearance of increasing wealth

and public donation honors cuts against Morrissey’s argument, raised in his motion to dismiss,

that Connell should have known well before 2020 that his family trust assets were at risk in the

event of a divorce with Pamela. Given the public displays of wealth and lavish lifestyle, coupled

with the growing donations in recent years, Connell would have no reasons to suspect that

Pamela would target his family trust assets in a divorce. This information is therefore relevant to

address the knowledge component in the statute of limitations defenses.
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Docket Number 2381CV00659

Lastly, to the extent Morrissey attempts to defend himself on the basis of his character,

experience, or reputation, Connell is entitled to discovery to test those claims.

Given the broad definition of “relevant” and the number of relevancy connections here,

the Court should compel Morrissey to answer Request No. 19 and Interrogatories No. 14 and 16.

Massachusetts courts have compelled a discovery response under lesser circumstances. In

Makrokanis, the court granted plaintiff's motion to compel on the grounds that the information

sought was “reasonably calculated to lead to the discovery of admissible evidence.”

Makrokanis, 2000 WL 1677597, at *1. There, even though the plaintiff sought information

pertaining to a non-party, the court compelled the defendant to answer because the non-party had

a relationship with the other parties and it was “not beyond reason to believe that the connection

.. might lead to discoverable material.” /d. at *2. Here, Connell’s Request and Interrogatories

seek information directly related to allegations in the Complaint and defenses expressed in

Morrissey’s Answer.

In addition, Morrissey’s claim that these discovery requests are “intended only to annoy,

embarrass, oppress and unduly burden this Defendant” falls short. When assessing this

discovery burden under Mass. R. Civ. P. 26(c), “{cJourt[s] may balance the litigants' need for the

discovery with the dangers posed by such discovery.” Fordham v. Simmons Agency, Inc., 2002

WL 31356172, at *3 (Mass. Super. Ct. Oct. 10, 2002) (document requests were discoverable,

relevant, and not intended to annoy, embarrass, or oppress defendant because the plaintiff

disputed the defendant’s actions and the documents “may shed light” on the “pattern or practice”

of defendant’s similar actions); see also Ayash v. Dana-Farber Cancer Institute, 46 Mass. App.

Ct. 384, 387-89 (1999) (court must balance a journalist's constitutional rights with the litigants’

need for the information and the public interest in having evidence); Bratt v. International

10
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Docket Number 2381CV00659

Business Machines Corp., 392 Mass. 508, 520-23 (1984) (court must balance the litigants’ need

for discovery of personal employee information with the employee's privacy interest).

Morrissey has no showing of the specific burdens he would suffer as a result of having to

produce materials related to the Requests and Interrogatories. For example, he offers no

explanation of the volume of documents that would need to be searched or why production of

these materials would be embarrassing to him. In Fordham, the court found that the balance fell

“strongly in favor of disclosure of each of the requests” when there was a minimal burden of

production, no basis for a protective order to protect the interests of third parties, and when the

requests targeted a “hotly disputed” factual issue. Fordham, 2002 WL 31356172, at *4. Similar

to Fordham, Connell’s document requests are discoverable, relevant, and not intended to annoy,

embarrass, or oppress Morrissey since the information sought “may shed light on ... any pattern

or practice” of the conduct in question. Id.

CONCLUSION

For the reasons discussed above, Plaintiff William C. Connell respectfully requests that the

Court order Defendant Robert J. Morrissey to (1) conduct an adequate search for materials

responsive to all discovery requests, (2) produce relevant documents and answers in response to

Connell’s specified Requests and Interrogatories, and for any other relief with respect to the fact

discovery deadline that the Court deems appropriate.

Il
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Superior Court - Middlesex
Docket Number 2381CV00659

Dated: September 1, 2023 Respectfully submitted,

WILLIAM C. CONNELL

YS,

Michael T. Marcucci (BBO #652186)
Rose M. Mooney (BBO #709503)
Erin E. Blechschmidt (BBO # 710756)
JONES DAY
100 High Street, 21st Floor
Boston, MA 02110
Telephone: 1.617.449.6887
mmarcucci @jonesday.com
mooney @jonesday.com
eblechschmidt @jonesday.com

12
Date Filed 10/12/2023 3:06 PM
Superior Court - Middlesex
Docket Number 2381CV00659

CERTIFICATE OF SERVICE

Thereby certify that on September 1, 2023 a true copy of the above document was served

by electronic mail and First Class mail upon:

Edward Notis-McConarty
Michael J. Puzo
Clinton R. Prospere
HEMENWAY & BARNES LLP
75 State Street
Boston, MA 02109
(617) 227 -7940
emcconarty @hembar. com
mpuzo@hembar.com
cprospere@hembar.com
Attorneys for Robert J. Morrisey

ose M. Mooney,

Case Info

Judge

Christopher K Barry-Smith Track Judge’s New Case

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Document Filed Date

October 12, 2023

Case Filing Date

March 07, 2023

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Motion-Secondary: Connell, William C. vs. Morrissey, Robert J.

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