Preview
Date Filed 12/21/2023 12:15 PM
Superior Court - Barnstable
Docket Number 2372CV00319
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2372CV00319
eee saecetecnetnnecettntntenene ne poovn ernst
PATRICK CALLAHAN and
HEATHER CALLAHAN,
Plaintiffs,
Vv
RANNEY and RIMINGTON CUSTOM BUILDING, LLC,
PATRICK RIMINGTON, ALEXANDER RANNEY and
PAMELA RIMINGTON,
Defendants.
evening nnn nnn
OPPOSITION TO DEFENDANTS’ MOTION FOR A
PROTECTIVE ORDER AND STATEMENT OF REASONS IN SUPPORT
The plaintiffs (“Plaintiffs”) oppose the defendants (“Defendants”) Motion for Protective
of Order and Statement of Reasons in Support (“Motion to Quash”) with respect to a single
subpoena (“Subpoena”) served on TD Bank, NA (“Bank”) for banking records of the corporate
defendant Ranney and Rimington Custom Building, LLC (“Corporate Defendant”). The
Subpoena requests only the production of documents not a deposition.
With respect to the substance of the Subpoena, the materials sought — bar ements
and a ted c are within the scope of permissible discovery pursuant to the Mass. R.
Civ. P. 26(b)(1) and well-settled controlling discovery principles. Indeed, they are essential to
the parties’ claims and/or defenses. The principal objection by the Defendants appears to be that
the documents should be produced in response to Rule 34 requests to the Defendants. For these
reasons, developed more fully below, the Plaintiffs respectfully request that the Motion to Quash
be denied in its entirety.
Client Files/055550/00001/05053584.DOCX
Date Filed 12/21/2023 12:15 PM
Superior Court - Barnstable
Docket Number 2372CV00319
i BRIEF FACTUAL AND ERUCED
ETAL AND PROCEDURAL BACKGROUND,
LEAL DALAL
1 The Plaintiffs are homeowners pursing the Defendants for negligence an defective
work, misrepresentation, breach of contract, violations of the Massachusetts home improvement
statute, and unfair and deceptive business practices arising out ofa contract for the remodeling of
their home (“Home Project”)
2 The Plaintiffs and Corporate Defendant entered into a written home improvement
construction contract (“Contract”) for the Home Project, The Contact provided for a stipulated
lump sum fee of $1,750,838.00 with payments to be made based upon certain completion stages
3 The Contract provides for a “14.0% Contractor’s Fee” (“Stated Contract Fee”)
The Plaintiffs had expressly relied upon the Stated Contract Fee in selecting the Corporate
Defendant and entering into the Contract. The Contract, drafted by the Defendants, contains no
other provisions or terms for other fees or costs to be paid to any of the Defendants including for
change orders in the Project.
4 Throughout the entire lifecycle of the Home Project, from initial meetings, to
Contract execution to submissions of change orders and addendums, the Defendants agreed and
represented to Plaintiffs that the only mark up on any costs would be the Stated Contract Fee -
14.0%, Until February 14, 2023, all of the change orders and addendum for work prepared by
the Defendants and presented to Plaintiffs for approval contained the Stated Contract Fee and no
other charges.
5 On February 14, 2023, when confronted by the Plaintiffs, the Defendants were
forced to admit that they had had engaged in a practice of surreptitiously marking up
subcontractors prices (“Hidden Charges”) and thereafter charging their fee 14.0
Client Files/ 109) 20CX 2
Date Filed 12/21/2023 12:15 PM
Superior Court - Barnstable
Docket Number 2372CV00319
6 Plaintiffs have already served without issue or objection subpoenas on several of
the subcontractors retained by the Corporate Defendant. The documents produced so far reflect
not only the marking up invoices by at least 10.0% but also substantial balances due to such
contractors by the Defendants.
7 The Corporate Defendant has asserted counterclaims including a claim related to
asserted unpaid balances due to it. This asserted balance includes the Hidden Charges.
2, THE SUBPOENA SEE. S$ RELEVANT DOCUMENTS.
The scope of discovery under Mass. R. Civ. P. 26(b)(1) is broad, encompassing
essentially all relevant or even potentially relevant information. The U.S, Supreme Court has
defined “relevancy” under Fed. R. Civ. P. 26(b)(1), which is parallel to Mass. R. Civ. P.
26(b)(1), as “broadly to encompass any matter that bears on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.” Cronin v. Strayer, 392
Mass. 525, 534 (1984), quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947). Rule 26(b),
therefore, allows parties latitude to make searching examinations into any matters that may assist
them in discovering non-privileged evidence that is or may be relevant, broadly understood.
Hull Mun. Lighting Plant v. Massachusetts Mun, Wholesale Elec, Co., 414 Mass. 609, 615
(1993). Trial judges have repeatedly held that “[uJniess it is clear that the information sought has
no possible connection to the subject matter of the action, discovery should be allowed.” Neles-
Jamesbury, Inc. v. Liberty Mut. Ins. Co., 2006 Mass. Super. LEXIS 581 at *10 (Nov. 14, 2006);
Meyer v. King, 1995 Mass. Super. LEXIS 13 at *5 (Dec. 19, 1995) (“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”).
Client Files/055550/00001/05053584,DOCX 3
Date Filed 12/21/2023 12:15 PM
Superior Court - Barnstable
Docket Number 2372CV00319
Though it is not Plaintiffs’ burden to explain to Defendants why they are seeking every
document, the Subpoena seeks basic information — kept in the ordinary course - from the Bank.
The Subpoena will help identify and confirm payment of subcontractors on funds received from
the Plaintiff- going to both the Plaintiffs claims and the counterclaim of the Corporate
Defendant. The Subpoena will also identify payments to contractors including other contractors
that might have provided services relative the Plaintiffs. Further, because the Defendants have
asserted that the Hidden Charge was standard practice for its other customers, the Subpoena will
help identify such parties.
PLAINTIFF IS NOT LIMITED TO SEEKING INFORMATION SOLELY FROM DEF DANTS.
In their Motion, Defendants contend that Plaintiffs should only be able to utilize requests
for document productions to obtain the requested material from the Defendants. The
Massachusetts Rules of Civil Procedure afford parties the right to use either or both vehicles to
obtain discovery. See, e.g., Rules 33, 34, and 45. Morcover, the Subpoena has the advantage of
(a) obtaining complete records from the Bank, instead of whatever partial and incomplete records
the Corporate Defendant might happen to have in its possession, and (b) obtaining the material
faster.
THE BANK HAS NOT MOVED FOR A PRO IVE ORDER AND THERE IS NO BASIS FOR
WITHHOLDING THE RELEVANT AND DISCOVERABLE DOCUMENTS,
The Defendants seek to quash the Subpoena to a third party — a financial institution —
that has not objected to the Subpoenas. Mass. R. Civ. P. 26(c) governs the issuance of protective
orders, which may be used to quash a subpoena. See Mass. Practice 49, section 3:6 (“Rule 26(c)
of the Massachusetts Rules of Civil Procedure governs the issuance of protective orders”). If the
Bank had moved for a protective order, w Ait ot, it would bear the burden of
demonstrating a particular need for protection. Thomas v. Sarfaty, 2001 Mass. Super. LEXIS
Client Files/055550/00001/05053584. DOCX 4
Date Filed 12/21/2023 12:15 PM
Superior Court - Barnstable
Docket Number 2372CV00319
119 at &11 (Jan. 29, 2001). That burden could not be carried on the record before the Court,
which is replete with “[b]road allegations of harm, unsubstantiated by specific examples, [which]
cannot support the issuance ofa protective order.” Id.
Pursuant to Rule 26(c), the available grounds for seeking a protective order generally
include (1) annoyance, embarrassment, or oppression; (2) protection of confidential business
information (such as trade secrets); (3) protection of privileged matters; and (4) other protection
“which justice requires.” In the Motion to Quash, Defendants make only vague and unsupported
allegations that the request is intrusive and oppressive. As detailed above, the subpoenaed
information was neither intended to nor causes any annoyance or oppression; rather, it is routine
request for basic documentation -monthly bank statements - concerning matters that are central
to this case.
Far from being annoying or oppressive, the Subpoena is a limited and entirely reasonable
attempt to uncover basic evidence. Annoyance and oppression generally arise only where
discovery tools are misused to harass the deponent, rather than to obtain discoverable
information. See Mass. Practice, supra at section 3.7. Further, financial institutions, like the
Bank, receive similar requests in the ordinary course of business.
Rule 26(c)(7) provides that a judge has discretion to enjoin the parties from disclosing
trade secrets or other confidential research, development, or commercial information. While
Defendants claim that the requests “substantially invade the privacy” of the Corporate
Defendants records, they offer no explanation for such a claim. To the extent that the
information may be genuinely sensitive and confidential, as Plaintiffs offered in the Rule 9C
discovery conference, Plaintiffs will agree to a reasonable and mutually-agreeable confidentiality
agreement.
Chi Files/055550/00001/05 pocx 5
Date Filed 12/21/2023 12:15 PM
Superior Court - Barnstable
Docket Number 2372CV00319
While Rule 26(b)(1) obviously protects any privileged information, there does not appear
to be any privilege at issue here. Defendants do not assert any privilege over the requested
documents and none would apply. In short, Defendants have shown no good cause why
Plaintiffs should not receive these basic financial records.
WHEREFORE, the Plaintiffs respect that the Court:
(i) Deny the Motion to Quash in its entirety; and
(ii) Grant such other relief as is appropriate.
Respectfully submitted,
PATRICK AND HEATHER CALLAHAN,
B eirsnpiboys
o seit
Dated: December 15, 2023 Q,
Alex M. Rodolakis BBO # 567781
FLETCHER TILTON PC
1597 FALMOUTH RoaD
CENTERVILLE, MA 02632
PHONE : (508) 778-1100
FACSIMILE : (508) 778-1800
arod jolaki letchertilton.com
Client Fites/055550/00001/05053584.DOCX 6
Date Filed 12/21/2023 12:15 PM
Superior Court - Barnstable
Docket Number 2372CV00319
CERTIFICATE OF
Star
te SERVICE
I, Alex M. Rodolakis, hereby certify that on this day, I served a true and accurate copy of the
foregoing OPPOSITION TO DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER AND
STATEMENT OF REASONS IN SUPPORT by email and first class mail upon the following:
WARREN H. BRODIE, Esq.
2 Salt Hay Road
Waquoit, MA 02536
Email: wbrodie@whbrodielaw.com
\ £7
Dated: December 15, 2023
Al “M. Rodolakis BBO# 567787
FLETCHER TILTON PC
1597 FALMOUTH ROAD
CENTERVILLE, MA 02632
PHONE : (508) 778-1100
FACSIMILE : (508) 778-1800
arodolakis@fletchertilton.com
Client Files/055550/00001/05053584.DOCX 7
Preview
Date Filed 12/21/2023 12:15 PM Superior Court - Barnstable Docket Number 2372CV00319 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 2372CV00319 eee saecetecnetnnecettntntenene ne poovn ernst PATRICK CALLAHAN and HEATHER CALLAHAN, Plaintiffs, Vv RANNEY and RIMINGTON CUSTOM BUILDING, LLC, PATRICK RIMINGTON, ALEXANDER RANNEY and PAMELA RIMINGTON, Defendants. evening nnn nnn OPPOSITION TO DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER AND STATEMENT OF REASONS IN SUPPORT The plaintiffs (“Plaintiffs”) oppose the defendants (“Defendants”) Motion for Protective of Order and Statement of Reasons in Support (“Motion to Quash”) with respect to a single subpoena (“Subpoena”) served on TD Bank, NA (“Bank”) for banking records of the corporate defendant Ranney and Rimington Custom Building, LLC (“Corporate Defendant”). The Subpoena requests only the production of documents not a deposition. With respect to the substance of the Subpoena, the materials sought — bar ements and a ted c are within the scope of permissible discovery pursuant to the Mass. R. Civ. P. 26(b)(1) and well-settled controlling discovery principles. Indeed, they are essential to the parties’ claims and/or defenses. The principal objection by the Defendants appears to be that the documents should be produced in response to Rule 34 requests to the Defendants. For these reasons, developed more fully below, the Plaintiffs respectfully request that the Motion to Quash be denied in its entirety. Client Files/055550/00001/05053584.DOCX Date Filed 12/21/2023 12:15 PM Superior Court - Barnstable Docket Number 2372CV00319 i BRIEF FACTUAL AND ERUCED ETAL AND PROCEDURAL BACKGROUND, LEAL DALAL 1 The Plaintiffs are homeowners pursing the Defendants for negligence an defective work, misrepresentation, breach of contract, violations of the Massachusetts home improvement statute, and unfair and deceptive business practices arising out ofa contract for the remodeling of their home (“Home Project”) 2 The Plaintiffs and Corporate Defendant entered into a written home improvement construction contract (“Contract”) for the Home Project, The Contact provided for a stipulated lump sum fee of $1,750,838.00 with payments to be made based upon certain completion stages 3 The Contract provides for a “14.0% Contractor’s Fee” (“Stated Contract Fee”) The Plaintiffs had expressly relied upon the Stated Contract Fee in selecting the Corporate Defendant and entering into the Contract. The Contract, drafted by the Defendants, contains no other provisions or terms for other fees or costs to be paid to any of the Defendants including for change orders in the Project. 4 Throughout the entire lifecycle of the Home Project, from initial meetings, to Contract execution to submissions of change orders and addendums, the Defendants agreed and represented to Plaintiffs that the only mark up on any costs would be the Stated Contract Fee - 14.0%, Until February 14, 2023, all of the change orders and addendum for work prepared by the Defendants and presented to Plaintiffs for approval contained the Stated Contract Fee and no other charges. 5 On February 14, 2023, when confronted by the Plaintiffs, the Defendants were forced to admit that they had had engaged in a practice of surreptitiously marking up subcontractors prices (“Hidden Charges”) and thereafter charging their fee 14.0 Client Files/ 109) 20CX 2 Date Filed 12/21/2023 12:15 PM Superior Court - Barnstable Docket Number 2372CV00319 6 Plaintiffs have already served without issue or objection subpoenas on several of the subcontractors retained by the Corporate Defendant. The documents produced so far reflect not only the marking up invoices by at least 10.0% but also substantial balances due to such contractors by the Defendants. 7 The Corporate Defendant has asserted counterclaims including a claim related to asserted unpaid balances due to it. This asserted balance includes the Hidden Charges. 2, THE SUBPOENA SEE. S$ RELEVANT DOCUMENTS. The scope of discovery under Mass. R. Civ. P. 26(b)(1) is broad, encompassing essentially all relevant or even potentially relevant information. The U.S, Supreme Court has defined “relevancy” under Fed. R. Civ. P. 26(b)(1), which is parallel to Mass. R. Civ. P. 26(b)(1), as “broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Cronin v. Strayer, 392 Mass. 525, 534 (1984), quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947). Rule 26(b), therefore, allows parties latitude to make searching examinations into any matters that may assist them in discovering non-privileged evidence that is or may be relevant, broadly understood. Hull Mun. Lighting Plant v. Massachusetts Mun, Wholesale Elec, Co., 414 Mass. 609, 615 (1993). Trial judges have repeatedly held that “[uJniess it is clear that the information sought has no possible connection to the subject matter of the action, discovery should be allowed.” Neles- Jamesbury, Inc. v. Liberty Mut. Ins. Co., 2006 Mass. Super. LEXIS 581 at *10 (Nov. 14, 2006); Meyer v. King, 1995 Mass. Super. LEXIS 13 at *5 (Dec. 19, 1995) (“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”). Client Files/055550/00001/05053584,DOCX 3 Date Filed 12/21/2023 12:15 PM Superior Court - Barnstable Docket Number 2372CV00319 Though it is not Plaintiffs’ burden to explain to Defendants why they are seeking every document, the Subpoena seeks basic information — kept in the ordinary course - from the Bank. The Subpoena will help identify and confirm payment of subcontractors on funds received from the Plaintiff- going to both the Plaintiffs claims and the counterclaim of the Corporate Defendant. The Subpoena will also identify payments to contractors including other contractors that might have provided services relative the Plaintiffs. Further, because the Defendants have asserted that the Hidden Charge was standard practice for its other customers, the Subpoena will help identify such parties. PLAINTIFF IS NOT LIMITED TO SEEKING INFORMATION SOLELY FROM DEF DANTS. In their Motion, Defendants contend that Plaintiffs should only be able to utilize requests for document productions to obtain the requested material from the Defendants. The Massachusetts Rules of Civil Procedure afford parties the right to use either or both vehicles to obtain discovery. See, e.g., Rules 33, 34, and 45. Morcover, the Subpoena has the advantage of (a) obtaining complete records from the Bank, instead of whatever partial and incomplete records the Corporate Defendant might happen to have in its possession, and (b) obtaining the material faster. THE BANK HAS NOT MOVED FOR A PRO IVE ORDER AND THERE IS NO BASIS FOR WITHHOLDING THE RELEVANT AND DISCOVERABLE DOCUMENTS, The Defendants seek to quash the Subpoena to a third party — a financial institution — that has not objected to the Subpoenas. Mass. R. Civ. P. 26(c) governs the issuance of protective orders, which may be used to quash a subpoena. See Mass. Practice 49, section 3:6 (“Rule 26(c) of the Massachusetts Rules of Civil Procedure governs the issuance of protective orders”). If the Bank had moved for a protective order, w Ait ot, it would bear the burden of demonstrating a particular need for protection. Thomas v. Sarfaty, 2001 Mass. Super. LEXIS Client Files/055550/00001/05053584. DOCX 4 Date Filed 12/21/2023 12:15 PM Superior Court - Barnstable Docket Number 2372CV00319 119 at &11 (Jan. 29, 2001). That burden could not be carried on the record before the Court, which is replete with “[b]road allegations of harm, unsubstantiated by specific examples, [which] cannot support the issuance ofa protective order.” Id. Pursuant to Rule 26(c), the available grounds for seeking a protective order generally include (1) annoyance, embarrassment, or oppression; (2) protection of confidential business information (such as trade secrets); (3) protection of privileged matters; and (4) other protection “which justice requires.” In the Motion to Quash, Defendants make only vague and unsupported allegations that the request is intrusive and oppressive. As detailed above, the subpoenaed information was neither intended to nor causes any annoyance or oppression; rather, it is routine request for basic documentation -monthly bank statements - concerning matters that are central to this case. Far from being annoying or oppressive, the Subpoena is a limited and entirely reasonable attempt to uncover basic evidence. Annoyance and oppression generally arise only where discovery tools are misused to harass the deponent, rather than to obtain discoverable information. See Mass. Practice, supra at section 3.7. Further, financial institutions, like the Bank, receive similar requests in the ordinary course of business. Rule 26(c)(7) provides that a judge has discretion to enjoin the parties from disclosing trade secrets or other confidential research, development, or commercial information. While Defendants claim that the requests “substantially invade the privacy” of the Corporate Defendants records, they offer no explanation for such a claim. To the extent that the information may be genuinely sensitive and confidential, as Plaintiffs offered in the Rule 9C discovery conference, Plaintiffs will agree to a reasonable and mutually-agreeable confidentiality agreement. Chi Files/055550/00001/05 pocx 5 Date Filed 12/21/2023 12:15 PM Superior Court - Barnstable Docket Number 2372CV00319 While Rule 26(b)(1) obviously protects any privileged information, there does not appear to be any privilege at issue here. Defendants do not assert any privilege over the requested documents and none would apply. In short, Defendants have shown no good cause why Plaintiffs should not receive these basic financial records. WHEREFORE, the Plaintiffs respect that the Court: (i) Deny the Motion to Quash in its entirety; and (ii) Grant such other relief as is appropriate. Respectfully submitted, PATRICK AND HEATHER CALLAHAN, B eirsnpiboys o seit Dated: December 15, 2023 Q, Alex M. Rodolakis BBO # 567781 FLETCHER TILTON PC 1597 FALMOUTH RoaD CENTERVILLE, MA 02632 PHONE : (508) 778-1100 FACSIMILE : (508) 778-1800 arod jolaki letchertilton.com Client Fites/055550/00001/05053584.DOCX 6 Date Filed 12/21/2023 12:15 PM Superior Court - Barnstable Docket Number 2372CV00319 CERTIFICATE OF Star te SERVICE I, Alex M. Rodolakis, hereby certify that on this day, I served a true and accurate copy of the foregoing OPPOSITION TO DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER AND STATEMENT OF REASONS IN SUPPORT by email and first class mail upon the following: WARREN H. BRODIE, Esq. 2 Salt Hay Road Waquoit, MA 02536 Email: wbrodie@whbrodielaw.com \ £7 Dated: December 15, 2023 Al “M. Rodolakis BBO# 567787 FLETCHER TILTON PC 1597 FALMOUTH ROAD CENTERVILLE, MA 02632 PHONE : (508) 778-1100 FACSIMILE : (508) 778-1800 arodolakis@fletchertilton.com Client Files/055550/00001/05053584.DOCX 7