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Date Filed 11/28/2022 3:44 PM
Superior Court - Middlesex
Docket Number 2181CV00761
31.1 RECEIVED
COMMONWEALTH OF MASSACHUSETTS 11/28/2022
OF THE TRIAL COURT
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CASE NO. 2181CV00761
PETER KAMEL,
Plaintiff
Vv.
MARIA AMELINA a/k/a MASHA AMELINA.
a/k/a MARIA BANAR,
Defendant
PLAINTIFF PETER KAMEL’S MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
REGARDING NOTICE OF DEPOSITION SERVED ON PETER KAMEL
Defendant Maria Amelina a/k/a Masha Amelina a/k/ Maria Banar (“Defendant”) should be
precluded from examining Plaintiff Peter Kamel regarding matters that are the subject of a pending
criminal action until after the criminal trial has concluded. Defendant’s intention to examine
Kamel regarding such matters, at this point in time, exposes Kamel to criminal liability and will
only result in Kamel asserting his right against self-incrimination afforded to him under the Fifth
Amendment to the United States Constitution and Article 12 of the Declaration of Rights of the
Constitution of the Commonwealth of Massachusetts. Given the highly personal nature of this
action, Kamel seeks to avoid the unnecessary annoyance or embarrassment resulting from such an
examination and further seeks to avoid any unnecessary confrontations, or motions to compel
responses, that may result from Kamel’s repeated assertion of his privilege against self-
incrimination. Kamel therefore seeks a protective order to preclude the Defendant from examining
him into such matters until after the criminal trial has concluded.
AB
Date Filed 11/28/2022 3:44 PM
Superior Court - Middlesex
Docket Number 2181CV00761
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This action stems from the personal relationship between Kamel and Defendant, which
began in 2017 and ended in 2020. During the course of their relationship, Kamel was incredibly
devoted to Defendant and provided personal and professional services for Defendant pursuant to
an agreement and mutual understanding Defendant would compensate Kamel for his services,
namely through Kamel’s acquisition of a fifty percent ownership in Defendant’s real property
located at 53 Dudley Street, Newton, Massachusetts (the “Property”).
The relationship between Kamel and Defendant ended on December 29, 2020, when
Defendant initiated a call to the Newton Police Department resulting in Kamel’s arrest for assault
and battery on a household member. Kamel was arraigned in the Newton District Court on
December 31, 2021, Case No. 2012CRO00491 (the “Criminal Case”). A jury trial is currently
scheduled in the Criminal Case for February 1, 2023.
Following the dissolution of their personal relationship, Defendant refused to honor the
parties’ prior agreement by compensating Kamel for the personal and professional services he
provided for Defendant during the course of their relationship. Kamel commenced this action on
April 2021 by a filing a complaint against Defendant through which Kamel seeks compensation
for the value of the personal and professional services he conferred upon Defendant (the
“Complaint”). (See Dkt. # 1).
Defendant answered the Complaint on December 27, 2021 and asserted counterclaims
against Kamel for: (1) assault; (2) battery; (3) abuse of process; (4) intentional infliction of
emotional distress; and (5) false imprisonment. (See Dkt. # 20). The majority of Defendant’s
counterclaims center around the evening of December 29, 2021, which is the subject of the
Criminal Case.
Date Filed 11/28/2022 3:44 PM
Superior Court - Middlesex
Docket Number 2181CV00761
On October 27, 2022, Defendant served Kamel with a notice of deposition. Given
Defendant’s counterclaims, Defendant’s examination of Kamel is likely to center around the
events that occurred up to and through the evening of December 29, 2021.
ARGUMENT
1 Applicable Legal Standard.
Discovery requests must be relevant to the subject matter of the litigation and be
“reasonably calculated to lead to the discovery of admissible evidence.” Mass. R. Civ. P. 26(b)(1).
If discovery requests appear motivated by a desire to annoy, embarrass, oppress or impose an
undue burden or expense, then the Court may impose a protective order. Mass. R. Civ. P. 26(c).
Upon motion by a party from discovery is sought, and for good cause shown, the court may make
any order which justice so requires. Jd. The conduct or scope of discovery and the issuance of
protective orders are matters that are “within the sound discretion of the motion or the trial judge.”
Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 159 (1999). Mass. R. Civ. P. 26(c) specifically
authorizes the court to enter orders providing “that discovery not be had” or “that certain matters
not be inquired into, or that the scope of the discovery be limited to certain matters.” Mass. R. Civ.
P. 26(c).
2. The Court Should Enter a Protective Order Precluding Defendant from Examining Kamel
Regarding Matters that are Currently the Subject the Criminal Case.
Generally, discovery is permissible of non-privileged material that is relevant to the
pending action and reasonably calculated to lead to the discovery of admissible evidence. See Hull
vy. Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 414 Mass. 609, 615 (1993); Mass. R.
Civ. P. 26. Defendant’s inquiry into the events of the evening of December 29, 2021, however,
implicate Kamel’s Fifth Amendment privilege against self-incrimination. Massachusetts law is
clear that “the Fifth Amendment privilege against self-incrimination applies alike to civil and
Date Filed 11/28/2022 3:44 PM
Superior Court - Middlesex
Docket Number 2181CV00761
criminal proceedings, wherever the answer might tend to subject to criminal responsibility him
who gives it.” U.S. Trust Co. of New York v. Herriott, 10 Mass. App. Ct. 313, 316 (1980) (quoting
McCarthy v. Arndstein, 266 U.S. 34, 40 (1924)). The scope of the Kamel’s Fifth Amendment
privilege in this civil case is the same as in the Criminal Case; it extends not only to matters that
would in themselves support a conviction under a criminal statute but also extends to matters
“which would furnish a link in the chain needed to prosecute the claimant for the crime.” Herriott,
10 Mass. App. Ct. at 316 (citing Hoffman v. United States, 341 U.S. 479. 486 (1951)).
Although Kamel’s assertion of his Fifth Amendment rights does not require the Court to
issue “a blanket injunction staying the future course of the litigation,” or require this case to yield
to the Criminal Case, it would nevertheless constitute a clear abuse of discretion for the Court to
“turn a deaf ear” to Kamel’s serious claim of privilege. Herriott, 10 Mass. App. Ct. at 316-317.
The Court must “balance any prejudice to the other civil litigants which might result from granting
a stay, against the potential harm to the party claiming the privilege if he is compelled to choose
between defending the civil action and protecting himself from criminal prosecution.” /d. at 317.
Here, Kamel must choose between defending against Defendant’s counterclaims in the
civil action from protecting himself against providing evidence that might be used against him in
the Criminal Case. See J.G. Foods, Inc. vy. Eaton, No. 201002460C, 2012 WL 4049225, at *2
(Mass. Super. Ct. July 12, 2012). The Criminal Case against Kamel is pending. So, Kamel’s
“exposure to criminal liability cannot be considered a possibility, it is a reality.” Jd. The Criminal
Case is scheduled for a jury trial on February 1, 2023. A delay of less than three months will not
significantly harm Defendant. See Eaton, 2012 WL 4049225 at * 2 (“[a] delay of an additional six
months to await disposition of the criminal case would not appear to significantly harm this
Date Filed 11/28/2022 3:44 PM
Superior Court - Middlesex
Docket Number 2181CV00761
defendant.”). The balance of harms therefore weighs in favor of granting Kamel’s motion for a
protective order.
CONCLUSION
Accordingly, Kamel respectfully requests that this Honorable Court enter a protective order
precluding Defendant from examining Kamel concerning: (1) the facts or allegations that are the
subject of Defendant’s counterclaims; (2) the events that transpired on the evening of December
29, 2021, resulting in Kamel’s arrest; and/or (3) any allegations that Kamel was physical abusive
to Defendant during their relationship.
Respectfully submitted,
Peter Kamel
By his attorneys
Dated: November 15, 2022 /s/ Sean Cullen
Sean B. Cullen, Esq.
BBO # 663906
Casey A. Sack, Esq.
BBO # 708448
Jonathan D. Friedmann, Esq.
BBO# 180130
RUDOLPH FRIEDMANN LLP
92 State Street
Boston, MA 02109
Tel: (617) 723-7700
cullen@rflawyers.com
csack@rflawyers.com
jfriedmann@rflawyers.com
Date Filed 11/28/2022 3:44 PM
Superior Court - Middlesex
Docket Number 2181CV00761
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 15" day of November 2022 the foregoing
Memorandum of Law in Support of Plaintiff’s Motion for Protective Order Regarding Notice of
Deposition of Peter Kamel was served via first-class upon the following parties:
Kristin M. Weberg, Esq.
Law Office of Kristin M. Weberg
4 Pearl Street
Dedham, MA 02026
/s/ Sean Cullen
Sean B. Cullen, Esq. (BBO 663906)
Preview
Date Filed 11/28/2022 3:44 PM Superior Court - Middlesex Docket Number 2181CV00761 31.1 RECEIVED COMMONWEALTH OF MASSACHUSETTS 11/28/2022 OF THE TRIAL COURT MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT CASE NO. 2181CV00761 PETER KAMEL, Plaintiff Vv. MARIA AMELINA a/k/a MASHA AMELINA. a/k/a MARIA BANAR, Defendant PLAINTIFF PETER KAMEL’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PROTECTIVE ORDER REGARDING NOTICE OF DEPOSITION SERVED ON PETER KAMEL Defendant Maria Amelina a/k/a Masha Amelina a/k/ Maria Banar (“Defendant”) should be precluded from examining Plaintiff Peter Kamel regarding matters that are the subject of a pending criminal action until after the criminal trial has concluded. Defendant’s intention to examine Kamel regarding such matters, at this point in time, exposes Kamel to criminal liability and will only result in Kamel asserting his right against self-incrimination afforded to him under the Fifth Amendment to the United States Constitution and Article 12 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts. Given the highly personal nature of this action, Kamel seeks to avoid the unnecessary annoyance or embarrassment resulting from such an examination and further seeks to avoid any unnecessary confrontations, or motions to compel responses, that may result from Kamel’s repeated assertion of his privilege against self- incrimination. Kamel therefore seeks a protective order to preclude the Defendant from examining him into such matters until after the criminal trial has concluded. AB Date Filed 11/28/2022 3:44 PM Superior Court - Middlesex Docket Number 2181CV00761 FACTUAL BACKGROUND AND PROCEDURAL HISTORY This action stems from the personal relationship between Kamel and Defendant, which began in 2017 and ended in 2020. During the course of their relationship, Kamel was incredibly devoted to Defendant and provided personal and professional services for Defendant pursuant to an agreement and mutual understanding Defendant would compensate Kamel for his services, namely through Kamel’s acquisition of a fifty percent ownership in Defendant’s real property located at 53 Dudley Street, Newton, Massachusetts (the “Property”). The relationship between Kamel and Defendant ended on December 29, 2020, when Defendant initiated a call to the Newton Police Department resulting in Kamel’s arrest for assault and battery on a household member. Kamel was arraigned in the Newton District Court on December 31, 2021, Case No. 2012CRO00491 (the “Criminal Case”). A jury trial is currently scheduled in the Criminal Case for February 1, 2023. Following the dissolution of their personal relationship, Defendant refused to honor the parties’ prior agreement by compensating Kamel for the personal and professional services he provided for Defendant during the course of their relationship. Kamel commenced this action on April 2021 by a filing a complaint against Defendant through which Kamel seeks compensation for the value of the personal and professional services he conferred upon Defendant (the “Complaint”). (See Dkt. # 1). Defendant answered the Complaint on December 27, 2021 and asserted counterclaims against Kamel for: (1) assault; (2) battery; (3) abuse of process; (4) intentional infliction of emotional distress; and (5) false imprisonment. (See Dkt. # 20). The majority of Defendant’s counterclaims center around the evening of December 29, 2021, which is the subject of the Criminal Case. Date Filed 11/28/2022 3:44 PM Superior Court - Middlesex Docket Number 2181CV00761 On October 27, 2022, Defendant served Kamel with a notice of deposition. Given Defendant’s counterclaims, Defendant’s examination of Kamel is likely to center around the events that occurred up to and through the evening of December 29, 2021. ARGUMENT 1 Applicable Legal Standard. Discovery requests must be relevant to the subject matter of the litigation and be “reasonably calculated to lead to the discovery of admissible evidence.” Mass. R. Civ. P. 26(b)(1). If discovery requests appear motivated by a desire to annoy, embarrass, oppress or impose an undue burden or expense, then the Court may impose a protective order. Mass. R. Civ. P. 26(c). Upon motion by a party from discovery is sought, and for good cause shown, the court may make any order which justice so requires. Jd. The conduct or scope of discovery and the issuance of protective orders are matters that are “within the sound discretion of the motion or the trial judge.” Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 159 (1999). Mass. R. Civ. P. 26(c) specifically authorizes the court to enter orders providing “that discovery not be had” or “that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.” Mass. R. Civ. P. 26(c). 2. The Court Should Enter a Protective Order Precluding Defendant from Examining Kamel Regarding Matters that are Currently the Subject the Criminal Case. Generally, discovery is permissible of non-privileged material that is relevant to the pending action and reasonably calculated to lead to the discovery of admissible evidence. See Hull vy. Mun. Lighting Plant v. Mass. Mun. Wholesale Elec. Co., 414 Mass. 609, 615 (1993); Mass. R. Civ. P. 26. Defendant’s inquiry into the events of the evening of December 29, 2021, however, implicate Kamel’s Fifth Amendment privilege against self-incrimination. Massachusetts law is clear that “the Fifth Amendment privilege against self-incrimination applies alike to civil and Date Filed 11/28/2022 3:44 PM Superior Court - Middlesex Docket Number 2181CV00761 criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.” U.S. Trust Co. of New York v. Herriott, 10 Mass. App. Ct. 313, 316 (1980) (quoting McCarthy v. Arndstein, 266 U.S. 34, 40 (1924)). The scope of the Kamel’s Fifth Amendment privilege in this civil case is the same as in the Criminal Case; it extends not only to matters that would in themselves support a conviction under a criminal statute but also extends to matters “which would furnish a link in the chain needed to prosecute the claimant for the crime.” Herriott, 10 Mass. App. Ct. at 316 (citing Hoffman v. United States, 341 U.S. 479. 486 (1951)). Although Kamel’s assertion of his Fifth Amendment rights does not require the Court to issue “a blanket injunction staying the future course of the litigation,” or require this case to yield to the Criminal Case, it would nevertheless constitute a clear abuse of discretion for the Court to “turn a deaf ear” to Kamel’s serious claim of privilege. Herriott, 10 Mass. App. Ct. at 316-317. The Court must “balance any prejudice to the other civil litigants which might result from granting a stay, against the potential harm to the party claiming the privilege if he is compelled to choose between defending the civil action and protecting himself from criminal prosecution.” /d. at 317. Here, Kamel must choose between defending against Defendant’s counterclaims in the civil action from protecting himself against providing evidence that might be used against him in the Criminal Case. See J.G. Foods, Inc. vy. Eaton, No. 201002460C, 2012 WL 4049225, at *2 (Mass. Super. Ct. July 12, 2012). The Criminal Case against Kamel is pending. So, Kamel’s “exposure to criminal liability cannot be considered a possibility, it is a reality.” Jd. The Criminal Case is scheduled for a jury trial on February 1, 2023. A delay of less than three months will not significantly harm Defendant. See Eaton, 2012 WL 4049225 at * 2 (“[a] delay of an additional six months to await disposition of the criminal case would not appear to significantly harm this Date Filed 11/28/2022 3:44 PM Superior Court - Middlesex Docket Number 2181CV00761 defendant.”). The balance of harms therefore weighs in favor of granting Kamel’s motion for a protective order. CONCLUSION Accordingly, Kamel respectfully requests that this Honorable Court enter a protective order precluding Defendant from examining Kamel concerning: (1) the facts or allegations that are the subject of Defendant’s counterclaims; (2) the events that transpired on the evening of December 29, 2021, resulting in Kamel’s arrest; and/or (3) any allegations that Kamel was physical abusive to Defendant during their relationship. Respectfully submitted, Peter Kamel By his attorneys Dated: November 15, 2022 /s/ Sean Cullen Sean B. Cullen, Esq. BBO # 663906 Casey A. Sack, Esq. BBO # 708448 Jonathan D. Friedmann, Esq. BBO# 180130 RUDOLPH FRIEDMANN LLP 92 State Street Boston, MA 02109 Tel: (617) 723-7700 cullen@rflawyers.com csack@rflawyers.com jfriedmann@rflawyers.com Date Filed 11/28/2022 3:44 PM Superior Court - Middlesex Docket Number 2181CV00761 CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 15" day of November 2022 the foregoing Memorandum of Law in Support of Plaintiff’s Motion for Protective Order Regarding Notice of Deposition of Peter Kamel was served via first-class upon the following parties: Kristin M. Weberg, Esq. Law Office of Kristin M. Weberg 4 Pearl Street Dedham, MA 02026 /s/ Sean Cullen Sean B. Cullen, Esq. (BBO 663906)