Preview
Date Filed 10/20/2023 10:19 PM
Superior Court - Middlesex
Docket Number 2381CV00934
14.2
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2381CV00934
JANE DOE
Plaintiff,
v.
ELIOT COMMUNITY HUMAN
SERVICES, INC., TERRELL
PATTERSON, and MICHAELA
JOHANSEN,
Defendants.
DECLARATION OF NOAH KAITIN IN SUPPORT OF PLAINTIFF JANE DOE’S
MOTION FOR ENTRY OF PROTECTIVE ORDER
I, Noah Kaitin, in support of Plaintiff Jane Doe’s motion for entry of a protective order
hereby declare and depose as follows:
A. Doe’s repeated attempts to develop a mutually beneficial confidentiality stipulation
have been fruitless.
1. I am over the age of eighteen, a member of the Massachusetts bar, and an attorney
in the law firm of Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”). I am one of the
WilmerHale lawyers serving as counsel in this case for Jane Doe. The matters addressed herein
are based on my personal knowledge and information I learned in the course of my duties on the
case, either from documents I have reviewed or from my colleagues at WilmerHale.
2. On August 29, 2023, I sent a letter to Defendants’ counsel regarding deficiencies
in Defendant Eliot Community Human Services, Inc.’s responses to Doe’s Interrogatories. See 8-
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29-2023 Kaitin Letter, attached as Exhibit A. In this letter, I twice expressed to Defendants that
their confidentiality concerns “can be addressed with a protective order.” See id.
3. On September 12, 2023, I sent an email to Defendants’ counsel “flag[ing]” for
them Doe’s desire to “enter a confidentiality agreement/protective order respecting the
sensitivity of the information at issue” in this matter. See 9-12-2023 Kaitin Email, attached as
Exhibit B.
4. On September 14, 2023, I sent a letter to Defendants’ counsel regarding
deficiencies in Defendant Eliot Community Human Services, Inc.’s responses Request for
Production of Documents. See 9-14-2023 Kaitin Letter, attached as Exhibit C. In this letter, I
expressed to Defendants that their confidentiality concerns regarding certain document
productions “can be addressed with a protective order” five times.
5. On September 26, 2023, my co-counsel Charlotte Mostertz emailed Defendants’
counsel, asking, that he “confirm that you will agree to a protective order over documents in this
case, including any references to our client’s identity.” See 9-26-2023 Mostertz Email, attached
as Exhibit D.
6. On September 27, 2023, I sent an email to Defendants’ counsel regarding Doe’s
document production, scheduled for that day. See 9-27-2023 First Kaitin Email, attached as
Exhibit E. In that email, I noted that Doe had “raised the necessity of a confidentiality
agreement/protective order multiple times.” I also asked that Defendants’ counsel maintain all
documents as Attorneys’ Eyes Only “pending the parties’ agreement on a proposed protective
order.” Later, in response, Defendants’ counsel insisted that he did “not see any reason for us to
agree to a confidentiality agreement/protective order.” In response, I clarified that any protective
order would be “a two-tier protective order, with some parts of our production (including
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Docket Number 2381CV00934
medical records) designated for review by outside counsel only, and other parts of the production
(like the EEC and DCF records) designated for review by party employees who need to see them
for purposes of the case and outside counsel.” Defendants’ counsel did not answer the question.
7. Also on September 27, 2023, I sent an email to Defendants’ counsel clarifying
that were producing to him via email “the portion of our production that we anticipate, under a
protective order, we would designate ‘Confidential.’” See 9-27-2023 Second Kaitin Email,
attached as Exhibit F. I also reiterated that “we would be willing to enter a form of protective
order that would permit E[l]iot employees to review these documents, to the extent reasonably
necessary for the defense of the case, if they agreed to comply with the protective order and
maintain the documents in confidence.” I also offered to produce Doe’s medical records via
email if Defendants’ counsel “agree[d] to maintain the documents in confidence, for inspection
by outside counsel of record only, and not disclose them to any other person, including your
clients, pending entry of a protective order.” On September 29, I sent a draft Confidentiality
Stipulation addressing the concerns Defendants’ counsel had raised with respect to his need to
share confidential information with his clients. See id. That confidentiality stipulation is attached
as Exhibit G but is in all substantive respects identical to the Proposed Order attached to Doe’s
Motion. Defendants’ counsel rejected this offer and asked for notice if Doe “intend[ed] to move
for the entry of a protective order.” See id. Defendants’ counsel again insisted that “[Doe has]
already told us there are documents you will designate as ‘highly confidential’ that our clients
would be unable to review. That is not workable, as our clients are obviously entitled to review
the evidence in this action which has been filed against them.” See id. In response, the parties
agreed to hold a 9C Conference.
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8. Doe’s counsel has endeavored to survey Massachusetts and federal cases to
determine how common are confidentiality protocols like the one she suggested. I have satisfied
myself that such protocols are regularly entered into by parties. To come to this conclusion, I
consulted with attorneys at Wilmerhale and looked for representative agreements, or the lack
thereof. I have included the confidentiality agreements from the following cases:
• Jane Doe v. Cape Cod Healthcare, Inc, (2384CV01236-BLS1), attached as Exhibit H.
• Maura Healey v. Uber and Lyft, (2084CV01519-BLS1), attached as Exhibit I.
• Lisa Ricchio v. Shangri La, (D. Mass 1:15-cv-13519-RGS), attached as Exhibit J.
• Massachusetts v. Purdue Pharma, (1884CV01808-B), attached as Exhibit K.
• Deborah Kiely v. Teradyne, Inc., (08-5744), attached as Exhibit L.
• FTI, LLC v. Robert J. Duffy, et al., (16-3176-BLS2), attached as Exhibit M.
• Aaron Delaroche v. The Job Center, LLC, (2279cv00151), attached as Exhibit N.
• Thulio Felisberto v. David Dumdey, et al., (D. Mass 1:19-cv-12062-JGD); Agreement
to be Bound by Stipulation and Order for the Production and Exchange of Confidential
and Highly Confidential Information, as signed by Defendants’ Counsel, attached as
Exhibit O.
Signed under the pains and penalties of perjury on October 7, 2023
/s/ Noah Kaitin
Noah Kaitin
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Docket Number 2381CV00934
Exhibit Index
• Exhibit A: 08 29-2023 Kaitin Letter
• Exhibit B: 9-12-2023 Kaitin Email
• Exhibit C: 9-14-2023 Kaitin Letter
• Exhibit D: 9-26-2023 Mostertz Email
• Exhibit E: 9-27-2023 First Kaitin Email
• Exhibit F: 9-27-2023 Second Kaitin Email
• Exhibit G: 9-29-2023 Proposed Confidentiality Stipulation
• Exhibit H: Protective Order, Jane Doe v. Cape Cod Healthcare, Inc, (2384CV01236-
BLS1).
• Exhibit I: Protective Order, Maura Healey v. Uber and Lyft, (2084CV01519-BLS1)
• Exhibit J: Protective Order, Lisa Ricchio v. Shangri La, (D. Mass 1:15-cv-13519-RGS)
• Exhibit K: Protective Order, Massachusetts v. Purdue Pharma, (1884CV01808-B)
• Exhibit L: Protective Order, Deborah Kiely v. Teradyne, Inc., (08-5744)
• Exhibit M: Protective Order, FTI, LLC v. Robert J. Duffy, et al., (16-3176-BLS2)
• Exhibit N: Protective Order, Aaron Delaroche v. The Job Center, LLC, (2279cv00151)
• Exhibit O: Protective Order, Thulio Felisberto v. David Dumdey, et al., (D. Mass 1:19-
cv-12062-JGD)
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Docket Number 2381CV00934
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Exhibit A
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Docket Number 2381CV00934
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August 29, 2023 Noah S. Kaitin
+1 617 526 6240 (t)
By Email +1 617 526 5000 (f)
noah.kaitin@wilmerhale.com
Christopher G. Long
David J. Zuares
Murphy & Riley, P.C.
One Adams Place, 859 Willard Street, Suite 310
Quincy, MA 02169
Re: Jane Doe v. Eliot Community Human Services Inc., et al. (2381CV00934)
Dear Counsel:
I write on behalf of Jane Doe concerning Eliot’s responses to our interrogatories dated August 4,
2023 in the case cited above. As you know, Eliot failed to provide its responses within 45 days,
waiving its objections. We agreed to a further thirty-seven-day extension of the answers based
on the understanding that Eliot would provide substantive responses at that time. However, there
are many significant deficiencies. We have set out examples of these deficiencies below.
• Interrogatory 1: Eliot’s suggestion that this interrogatory calls for privileged
information is plainly wrong. To the contrary, Rule 26(b)(1) explicitly confirms that a
party may obtain discovery about “the identity and location of persons having knowledge
of any discoverable matter.” We also disagree that this interrogatory is vague, unduly
burdensome, or not reasonably calculated to lead to the discovery of admissible
evidence. This is a standard interrogatory, and Defendants have asked Jane Doe the same
question in their Interrogatory 10. Please confirm by September 6, 2023, that you have
identified all individuals known to Eliot to have relevant knowledge and the nature and
substance of their knowledge.
• Interrogatory 3: Eliot states that it is attaching the potentially relevant insurance policies
in Exhibit 6, but this production is incomplete. Exhibit 6 appears to include only the
declarations and schedules for the insurance policies and not the forms and endorsements
that are part of the policies. Please confirm that you will either answer the interrogatory
or produce the rest of the policies by September 6.
• Interrogatory 4: We disagree that this interrogatory is compound, overly broad, vague,
unduly burdensome, or not reasonably calculated to lead to the discovery of admissible
evidence. On the contrary, the interrogatory is directly relevant to Eliot’s failure to take
reasonable steps to protect Jane Doe from sexual exploitation and failure to exercise
reasonable care in the retention and supervision of Eliot Employees at the Atlantic House.
The instructions also specified a relevant period, from June 6, 2001 to the present, and the
period, at a minimum, should include the when Doe lived at the Atlantic
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Docket Number 2381CV00934
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Christopher G. Long
David J. Zuares
August 29, 2023
Page 2
House. Moreover, we have already provided a more than five-week extension based on
your agreement to provide substantive responses to the interrogatories (rather than just an
agreement to supplement). Please confirm that you will update Eliot’s response by
September 6, 2023 to identify — as requested — all persons who held any formal or
informal supervisory or management authority over the Atlantic House or any Eliot
Employee who worked at the Atlantic House and the nature of each such person’s
role. As the interrogatory specified, this should include all persons who supervised other
supervisors up to the President/CEO and Board of Directors.
• Interrogatory 5: We disagree that this interrogatory is compound, overly broad, vague,
unduly burdensome, or not reasonably calculated to lead to the discovery of admissible
evidence. On the contrary, the interrogatory is directly relevant to our client’s claims for
Eliot’s failure to take reasonable steps to protect her from sexual exploitation and to
exercise reasonable care in the retention and supervision of Eliot Employees at the
Atlantic House. The instructions also specified a relevant period, from June 6, 2001 to
the present. Your answer does not even come close to responding to the interrogatory.
You contend that trainings were provided to all employees but have not identified any of
the requested information, including for each such training, the identity of the persons
who planned or provided the training; the identity of the persons who attended the
training; the subjects covered in the training session; the identity of all training materials
or other documents provided during the training session; the persons responsible for
coordinating the training session and training materials; and the identity of any
documents reflecting sign in or attendance logs for each such training. Nor have you
identified any formal or informal training sessions addressing the risk of sexual abuse or
sexual exploitation of Atlantic House residents. Please confirm that you will update
Eliot’s response no later than September 6, 2023. If you refuse to do so, we will seek to
exclude any evidence at trial of employee training beyond the brief statement in your
response and the three documents contained in Exhibit 2.
• Interrogatory 6: Again, the objections have been waived. We also disagree that this
interrogatory is compound, overly broad, vague, unduly burdensome, or not reasonably
calculated to lead to the discovery of admissible evidence. On the contrary, the
interrogatory is directly relevant to our client’s claims for Eliot’s failure to take
reasonable steps to protect Jane Doe from sexual exploitation and failure to exercise
reasonable care in the retention and supervision of Eliot Employees at the Atlantic House.
The instructions also specified a relevant period, from June 6, 2001 to the present. Once
again, your answer does not even come close to responding to the interrogatory. You
state that Eliot provides “its employees” with “many documents” but have not identified
which employees have received these documents or which documents each received.
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Christopher G. Long
David J. Zuares
August 29, 2023
Page 3
Please confirm that you will update Eliot’s response no later than September 6, 2023.
Again, if you refuse to do so, we will seek to exclude any evidence at trial of manuals and
policies provided to employees beyond the brief statement in your response and the three
documents contained in Exhibit 2.
• Interrogatory 7: We disagree that this interrogatory is compound, overly broad, vague,
unduly burdensome, or not reasonably calculated to lead to the discovery of admissible
evidence. On the contrary, the interrogatory is directly relevant to Jane Doe’s claims. We
also disagree that it would require the disclosure of privileged information — the
identities of persons involved in an investigation and the nature of each person’s role in
the investigation are not privileged. Moreover, we have already provided a more than
five-week extension based on your agreement to provide substantive responses to the
interrogatories (rather than just an agreement to supplement). There is thus no basis for
your refusal to answer at this time. Please confirm that you will update Eliot’s response
no later than September 6, 2023.
• Interrogatory 8: We disagree that this interrogatory is compound, overly broad, vague,
unduly burdensome, or not reasonably calculated to lead to the discovery of admissible
evidence. On the contrary, the interrogatory is directly relevant to Doe’s claims that Eliot
was aware of the risk that she could be sexually exploited and failed to exercise
reasonable care to protect her from that risk. We also disagree that the requested
information is privileged, and any privacy concerns can be addressed with a protective
order or by redacting personally identifying information. See Roman Cath. Bishop of
Springfield v. Travelers Cas. & Sur. Co., 2008 WL 650392, at *2 (Mass. Super. Jan. 7,
2008). Once again, your answer does not come close to responding to the scope of the
question. We requested information on all reports of sexual abuse or sexual exploitation
in a residential program operated by Eliot. The question was not limited to allegations of
(in your words) “an Eliot staff member assisting a client engaging in commercial sexual
acts.” See Pierce v. C.R.C. Line, Inc., 2006 WL 2848018, at *1–2 (Mass. Super. Oct. 4,
2006) (ordering a defendant to produce “statements about sexual harassment” received by
the defendant over a five-year period whose content was unrelated to the plaintiff); see
also Bobo v. Mitsubishi Motors Corp., 1999 WL 1318951, at *1 (Mass. Super. Mar. 8,
1999) (reprimanding a defendant for not turning over evidence of incidents similar to the
plaintiff’s).
• Interrogatory 9: We disagree that this interrogatory is compound, overly broad, vague,
unduly burdensome, or not reasonably calculated to lead to the discovery of admissible
evidence. On the contrary, the interrogatory is directly relevant to our client’s claims for
Eliot’s failure to take reasonable steps to protect her from sexual exploitation and failure
to exercise reasonable care in the retention and supervision of Eliot Employees at the
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Docket Number 2381CV00934
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Christopher G. Long
David J. Zuares
August 29, 2023
Page 4
Atlantic House. We also disagree that the requested information is privileged, and any
concerns about privacy can be addressed with a protective order. There is no excuse for
refusing to respond to this question. Cf. Roman Cath. Bishop of Springfield v. Travelers
Cas. & Sur. Co., 2008 WL 650409, at *5–6 (Mass. Super. Jan. 7, 2008) (ordering
production of “documents which contain a report of rape or sexual assault” and rejecting
objections related to the “scope and burdensome nature of [the] discovery request); Rolli
v. Melenevskaya, 2001 WL 1334321, at *2 (Mass. Super. July 26, 2001) (permitting
broad discovery in a negligent supervision action); see also In re HEB Grocery Co., L.P.,
375 S.W.3d 497, 506 (Tex. App. 2012) (ordering production of employment records
including “job performance evaluations” for each employee “working in the area where”
a customer was injured in a failure to train action).
Thank you in advance for your prompt attention to the above. If it would help you, we are
available to meet and confer on any of the deficiencies raised above. Of course, we reserve all
rights with respect to all responses and objections moving forward.
Sincerely,
/s/ Noah Kaitin
Noah Kaitin
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Docket Number 2381CV00934
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Exhibit B
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Docket Number 2381CV00934
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From: Kaitin, Noah
To: David Zuares; Christopher G. Long
Cc: WH Jane Doe v ECHS et al
Subject: Doe v. ECHS, et al. (2381CV00934)
Date: Tuesday, September 12, 2023 8:51:55 PM
Attachments: 2023-09-12 -- Doe Responses to Defs First Interrogatories_Redacted.pdf
Hi David and Chris,
I hope you both are having a nice evening. Doe’s responses to Defendants’ Interrogatories are
attached for service.
One thing came up that we’d like to flag for you. Given Doe’s pseudonymity and the nature of
this matter, both parties should enter a confidentiality agreement/protective order respecting
the sensitivity of the information at issue. I have thus redacted our client’s signature, as she
signed in her true name. The unredacted signature page is available for your inspection, and
we will send it along as soon as you confirm that her name and signature will be kept
confidential.
Best,
Noah
Noah Kaitin | WilmerHale
He/Him/His
60 State Street
Boston, MA 02109
(c) +1 781 820 6751
(o) +1 617 526 6240
noah.kaitin@wilmerhale.com
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Docket Number 2381CV00934
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Exhibit C
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Docket Number 2381CV00934
9
September 14, 2023 Noah S. Kaitin
+1 617 526 6240 (t)
By Email +1 617 526 5000 (f)
noah.kaitin@wilmerhale.com
David J. Zuares
Christopher G. Long
Murphy & Riley, P.C.
One Adams Place, 859 Willard Street, Suite 310
Quincy, MA 02169
Re: Jane Doe v. Eliot Community Human Services Inc., et al. (2381CV00934)
Counsel:
I write on behalf of Jane Doe concerning Eliot’s responses to our Request for Production of
Documents, dated August 4, 2023. We agreed to a significant extension to Eliot’s response date
based on the understanding that Eliot would provide a substantive production at that time.
However, Eliot failed to provide its production on the agreed-upon date. Moreover, there are
many significant remaining deficiencies. For some requests, Eliot has refused to produce
documents that are plainly relevant to the case. For others, Eliot has been vague on what it is
producing and what it is withholding.
As you know, Superior Court Rule 30A requires a party objecting to an RFP to confirm that all
responsive documents have been produced or, if not, to “describe the nature of all responsive
documents or things in the possession, custody, or control of the responding party that have not
been produced because of the objection.” Similarly, Mass. R. Civ. P. 26(b)(5) requires a party
making a claim of privilege to “describe the nature of the documents, communications, or
tangible things not produced or disclosed.” As these rules confirm, Eliot must expressly
confirm, for each request, whether it is agreeing to produce all responsive, non-privileged
documents or whether, instead, it is providing only some subset of the responsive documents and
withholding others. It has failed to do so.
We have set out examples of these deficiencies below.
• RFPs 1, 2, 3, 14: We disagree that these requests are overly broad in time and scope,
ambiguous, unduly burdensome, seek irrelevant documents or things, or are not
reasonably calculated to lead to the discovery of admissible evidence in this action.
Instead, each focuses on documents directly relevant to Doe’s claims. We also fail to see
how Eliot’s own documents would be subject to grand jury secrecy. It is unclear from
your responses whether Eliot is agreeing to provide all responsive, non-privileged
documents or whether, instead, it is providing only some subset of the documents and
withholding others. For each of these RFPs, please confirm whether you are producing
all responsive, non-privileged documents in your possession, custody, or control. If you
are not providing all responsive documents, please describe, as required by Rule 30A,
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Christopher G. Long
September 14, 2023
Page 2
“the nature of the documents, communications, or tangible things not produced or
disclosed” no later than September 22, 2023. Please also confirm (1) when we will
receive the remaining documents referenced in your responses that you are still reviewing
and (2) when we will receive a privilege log for any documents you are withholding as
purportedly privileged or based on your claim of grand jury secrecy.
• RFP 4: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. Eliot’s documents related
to Ashley Goodrich’s termination are directly relevant to the issues in the case, and there
is no basis for refusing to provide them. There are no relevant privileges, and any
concerns about privacy can be addressed with a protective order. Please confirm that you
will provide these documents no later than September 22, 2023. If you continue to
refuse, we will move to compel them.
• RFPs 5 and 6: We disagree that these requests are overly broad in time and scope,
ambiguous, unduly burdensome, seek irrelevant documents or things, or are not
reasonably calculated to lead to the discovery of admissible evidence in this action.
Eliot’s employment files for the Eliot employees and officers who worked at the Atlantic
or who had supervisory or management authority over the Atlantic House or its
employees “while Jane Doe resided there” are directly relevant to the issues in the case,
and there is no basis for refusing to provide them. There are no relevant privileges, and
privacy protections for employment files are qualified, not absolute. Employment files
must be produced when “[t]here is []sufficient relevance between the personnel records
requested and the action at bar to warrant their discovery,” see Fitzgerald v. Morrison,
2002 WL 389872, at *2 (Mass. Super. Jan. 10, 2002), as is the case here. Any
confidentiality concerns can be addressed with a protective order. Please confirm that
you will provide these documents no later than September 22, 2023. If you continue to
refuse, we will move to compel them.
• RFP 7: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. In Exhibit 2, you produced
a handbook and two policy summaries. The request asked for more than just the manuals
and policies themselves; it also asked for documents “concerning” the manuals and
policies, including, e.g., any internal, non-privileged communications relating to the
manuals and policies. It is unclear from your response whether Eliot has searched for or
is withholding internal communications relating to the manuals and policies. As required
by Superior Court Rule 30A, please either confirm that you are producing all responsive,
non-privileged documents in your possession, custody, or control, or if you are not,
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Christopher G. Long
September 14, 2023
Page 3
please describe “the nature of the documents, communications, or tangible things not
produced or disclosed,” no later than September 22, 2023.
• RFP 8: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. In Exhibit 2, you produced
a handbook and two policy summaries. The request asked for more than manuals and
policies; it also asked for documents concerning all formal and informal training sessions
for Eliot employees while Jane Doe resided there. It is unclear from your response
whether Eliot is withholding documents relating to training sessions or whether there
were simply no training sessions. As required by Superior Court Rule 30A, please either
confirm that you are producing all responsive, non-privileged documents in your
possession, custody, or control, or if you are not, please describe “the nature of the
documents, communications, or tangible things not produced or disclosed,” no later than
September 22, 2023. As Doe previously stated in connection with her Interrogatory No.
5, if Eliot refuses to provide discovery concerning the training sessions it has purportedly
provided to employees, we will seek to exclude any evidence at trial of employee training
beyond the three documents contained in Exhibit 2.
• RFPs 9, 10, and 11: We disagree that these requests are overly broad in time and scope,
ambiguous, unduly burdensome, seek irrelevant documents or things, or are not
reasonably calculated to lead to the discovery of admissible evidence in this action. We
take it from your response that Exhibits 1 and 4 identify every Eliot employee at the
Atlantic House (1) who worked at the Atlantic House or who interacted with Jane Doe in
any capacity and the nature of each such person’s interactions (RFP 9), (2) who had
supervisory or management authority over the Atlantic House or its employees and the
nature of that authority (RFP 10), and (3) who participated in the investigation of the
events described in the Complaint (RFP 11). Please let us know if this understanding is
mistaken. Beyond that issue, however, we are also confused by an apparent lack of
documents concerning the identity of Eliot’s higher-level corporate employees or
officers, located at the company’s headquarters, with supervisory or management
authority over the Atlantic House and its employees and the nature of that authority. As
required by Superior Court Rule 30A, please confirm whether you are withholding
documents sufficient to provide this information. If the organizational chart you offered
to produce in your August 31 letter suffices in your opinion, please provide the chart no
later than September 22, 2023.
• RFPs 12 and 13: We disagree that these requests are overly broad in time and scope,
ambiguous, unduly burdensome, seek irrelevant documents or things, or are not
reasonably calculated to lead to the discovery of admissible evidence in this action. In
Exhibits 1, 3, and 4, you produced some internal reports, a single text message, and some
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Christopher G. Long
September 14, 2023
Page 4
communications with the DCF and EEC. The requests encompass, however, not only
formal reports and communications but also all other documents relating to the
investigations, including, e.g., any internal, non-privileged communications relating to
the investigations. We expect that these almost certainly exist. We take it from your
response and August 31 letter that Eliot may be withholding internal communications and
other documents relating to the investigations. As required by Superior Court Rule 30A,
please either confirm that you are producing all responsive, non-privileged documents in
your possession, custody, or control, or if you are not, please describe “the nature of the
documents, communications, or tangible things not produced or disclosed,” no later than
September 22, 2023. Please also confirm when we will receive a privilege log for any
documents you are withholding as purportedly privileged.
• RFP 14: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. To the contrary, the
interrogatory is directly relevant to our client’s claims that she was sexually exploited by
Ashley Goodrich and that Eliot failed to exercise reasonable care to protect her from that
risk. We also fail to see how Eliot’s documents would be subject to grand jury secrecy,
and any privacy concerns can be addressed with a protective order. It is unclear from
your responses whether Eliot is agreeing to provide all responsive, non-privileged
documents or some subset of the documents. As required by Superior Court Rule 30A,
please either confirm that you are producing all responsive, non-privileged documents in
your possession, custody, or control, or if you are not, please describe “the nature of the
documents, communications, or tangible things not produced or disclosed,” no later than
September 22, 2023. Please also confirm when we will receive a privilege log for any
documents you are withholding as purportedly privileged or based on your claim of grand
jury secrecy.
• RFP 15: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. Eliot’s knowledge of any
other reports or allegations of sexual abuse, sexual exploitation, or sex trafficking of
persons enrolled in its programs is directly relevant to our client’s claims that Eliot was
aware of the risk that she could be sexually exploited and failed to exercise reasonable
care to protect her from that risk. We also fail to see how these documents would be
subject to privileges apart from the attorney-client and work product privileges. Any
privacy concerns can be addressed with a protective order. See Pierce v. C.R.C. Line,
Inc., 2006 WL 2848018, at *1–2 (Mass. Super. Oct. 4, 2006) (ordering a defendant to
produce “statements about sexual harassment” received by the defendant over a five-year
period whose content was unrelated to the plaintiff); Bobo v. Mitsubishi Motors Corp.,
1999 WL 1318951, at *1 (Mass. Super. Mar. 8, 1999) (reprimanding a defendant for not
Date Filed 10/20/2023 10:19 PM
Superior Court - Middlesex
Docket Number 2381CV00934
13
David J. Zuares
Christopher G. Long
September 14, 2023
Page 5
turning over evidence of incidents similar to the plaintiff’s); see also In re Subpoena
Duces Tecum, 445 Mass. 685, 689, 840 N.E.2d 470, 474 (2006) (discussing the use of an
agreed-upon protective order to protect possible “privacy interests” relating to sexual
abuse); Doe v. Lyons, 1996 WL 751531, at *7 (Mass. Super. Dec. 23, 1996) (same). We
also would be amenable to Eliot redacting the names of any other victims from the
requested documents. See Lyons, 1996 WL 751531, at *7. Please confirm that you will
provide these documents no later than September 22, 2023. If you continue to refuse, we
will move to compel them.
• RFP 16: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. In Exhibit 5, you produced
a Statement of Work, two handbooks, and two narratives. This production is clearly
incomplete. It omits, for example, the Master Agreement and other contract documents
referenced in the Statement of Work and the agreements’ financial terms. These
documents are directly relevant to our client’s claims for breach of contract. Please
confirm that Eliot will provide a complete set of its contracts with the DCF, EEC, or any
other governmental entity concerning the Atlantic House no later than September 22,
2023. If you refuse to do so, we will move to compel them.
• RFP 17: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. Eliot’s communications
with the DCF, the EEC, or any other governmental entity concerning the relevant
contracts and investigations or notices of violations concerning the Atlantic House are
directly relevant to the issues in the case, and there is no basis for refusing to provide
them. We also fail to see any relevant privileges, and any concerns about privacy,
confidentiality, or trade secrets can be addressed with a protective order. Please confirm
that you will provide these documents no later than September 22, 2023. If you refuse to
do so, we will move to compel them.
• RFP 18: We disagree that this request is overly broad in time and scope, ambiguous,
unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated
to lead to the discovery of admissible evidence in this action. We would like to obtain, at
a minimum, the policies and the defendants’ communications with the insurers and any
agents concerning this case or any other potential claims by Doe. You state that the
policies will be made available for inspection and copying at your offices. We would like
to obtain an electronic copy of the complete policies. Please confirm that you will
provide this, as you have the other documents that you have agreed to produce no later
than September 22, 2023. If you are unwilling to do so, please expl
Preview
Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 14.2 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO. 2381CV00934 JANE DOE Plaintiff, v. ELIOT COMMUNITY HUMAN SERVICES, INC., TERRELL PATTERSON, and MICHAELA JOHANSEN, Defendants. DECLARATION OF NOAH KAITIN IN SUPPORT OF PLAINTIFF JANE DOE’S MOTION FOR ENTRY OF PROTECTIVE ORDER I, Noah Kaitin, in support of Plaintiff Jane Doe’s motion for entry of a protective order hereby declare and depose as follows: A. Doe’s repeated attempts to develop a mutually beneficial confidentiality stipulation have been fruitless. 1. I am over the age of eighteen, a member of the Massachusetts bar, and an attorney in the law firm of Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”). I am one of the WilmerHale lawyers serving as counsel in this case for Jane Doe. The matters addressed herein are based on my personal knowledge and information I learned in the course of my duties on the case, either from documents I have reviewed or from my colleagues at WilmerHale. 2. On August 29, 2023, I sent a letter to Defendants’ counsel regarding deficiencies in Defendant Eliot Community Human Services, Inc.’s responses to Doe’s Interrogatories. See 8- Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 29-2023 Kaitin Letter, attached as Exhibit A. In this letter, I twice expressed to Defendants that their confidentiality concerns “can be addressed with a protective order.” See id. 3. On September 12, 2023, I sent an email to Defendants’ counsel “flag[ing]” for them Doe’s desire to “enter a confidentiality agreement/protective order respecting the sensitivity of the information at issue” in this matter. See 9-12-2023 Kaitin Email, attached as Exhibit B. 4. On September 14, 2023, I sent a letter to Defendants’ counsel regarding deficiencies in Defendant Eliot Community Human Services, Inc.’s responses Request for Production of Documents. See 9-14-2023 Kaitin Letter, attached as Exhibit C. In this letter, I expressed to Defendants that their confidentiality concerns regarding certain document productions “can be addressed with a protective order” five times. 5. On September 26, 2023, my co-counsel Charlotte Mostertz emailed Defendants’ counsel, asking, that he “confirm that you will agree to a protective order over documents in this case, including any references to our client’s identity.” See 9-26-2023 Mostertz Email, attached as Exhibit D. 6. On September 27, 2023, I sent an email to Defendants’ counsel regarding Doe’s document production, scheduled for that day. See 9-27-2023 First Kaitin Email, attached as Exhibit E. In that email, I noted that Doe had “raised the necessity of a confidentiality agreement/protective order multiple times.” I also asked that Defendants’ counsel maintain all documents as Attorneys’ Eyes Only “pending the parties’ agreement on a proposed protective order.” Later, in response, Defendants’ counsel insisted that he did “not see any reason for us to agree to a confidentiality agreement/protective order.” In response, I clarified that any protective order would be “a two-tier protective order, with some parts of our production (including Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 medical records) designated for review by outside counsel only, and other parts of the production (like the EEC and DCF records) designated for review by party employees who need to see them for purposes of the case and outside counsel.” Defendants’ counsel did not answer the question. 7. Also on September 27, 2023, I sent an email to Defendants’ counsel clarifying that were producing to him via email “the portion of our production that we anticipate, under a protective order, we would designate ‘Confidential.’” See 9-27-2023 Second Kaitin Email, attached as Exhibit F. I also reiterated that “we would be willing to enter a form of protective order that would permit E[l]iot employees to review these documents, to the extent reasonably necessary for the defense of the case, if they agreed to comply with the protective order and maintain the documents in confidence.” I also offered to produce Doe’s medical records via email if Defendants’ counsel “agree[d] to maintain the documents in confidence, for inspection by outside counsel of record only, and not disclose them to any other person, including your clients, pending entry of a protective order.” On September 29, I sent a draft Confidentiality Stipulation addressing the concerns Defendants’ counsel had raised with respect to his need to share confidential information with his clients. See id. That confidentiality stipulation is attached as Exhibit G but is in all substantive respects identical to the Proposed Order attached to Doe’s Motion. Defendants’ counsel rejected this offer and asked for notice if Doe “intend[ed] to move for the entry of a protective order.” See id. Defendants’ counsel again insisted that “[Doe has] already told us there are documents you will designate as ‘highly confidential’ that our clients would be unable to review. That is not workable, as our clients are obviously entitled to review the evidence in this action which has been filed against them.” See id. In response, the parties agreed to hold a 9C Conference. Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 8. Doe’s counsel has endeavored to survey Massachusetts and federal cases to determine how common are confidentiality protocols like the one she suggested. I have satisfied myself that such protocols are regularly entered into by parties. To come to this conclusion, I consulted with attorneys at Wilmerhale and looked for representative agreements, or the lack thereof. I have included the confidentiality agreements from the following cases: • Jane Doe v. Cape Cod Healthcare, Inc, (2384CV01236-BLS1), attached as Exhibit H. • Maura Healey v. Uber and Lyft, (2084CV01519-BLS1), attached as Exhibit I. • Lisa Ricchio v. Shangri La, (D. Mass 1:15-cv-13519-RGS), attached as Exhibit J. • Massachusetts v. Purdue Pharma, (1884CV01808-B), attached as Exhibit K. • Deborah Kiely v. Teradyne, Inc., (08-5744), attached as Exhibit L. • FTI, LLC v. Robert J. Duffy, et al., (16-3176-BLS2), attached as Exhibit M. • Aaron Delaroche v. The Job Center, LLC, (2279cv00151), attached as Exhibit N. • Thulio Felisberto v. David Dumdey, et al., (D. Mass 1:19-cv-12062-JGD); Agreement to be Bound by Stipulation and Order for the Production and Exchange of Confidential and Highly Confidential Information, as signed by Defendants’ Counsel, attached as Exhibit O. Signed under the pains and penalties of perjury on October 7, 2023 /s/ Noah Kaitin Noah Kaitin Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 Exhibit Index • Exhibit A: 08 29-2023 Kaitin Letter • Exhibit B: 9-12-2023 Kaitin Email • Exhibit C: 9-14-2023 Kaitin Letter • Exhibit D: 9-26-2023 Mostertz Email • Exhibit E: 9-27-2023 First Kaitin Email • Exhibit F: 9-27-2023 Second Kaitin Email • Exhibit G: 9-29-2023 Proposed Confidentiality Stipulation • Exhibit H: Protective Order, Jane Doe v. Cape Cod Healthcare, Inc, (2384CV01236- BLS1). • Exhibit I: Protective Order, Maura Healey v. Uber and Lyft, (2084CV01519-BLS1) • Exhibit J: Protective Order, Lisa Ricchio v. Shangri La, (D. Mass 1:15-cv-13519-RGS) • Exhibit K: Protective Order, Massachusetts v. Purdue Pharma, (1884CV01808-B) • Exhibit L: Protective Order, Deborah Kiely v. Teradyne, Inc., (08-5744) • Exhibit M: Protective Order, FTI, LLC v. Robert J. Duffy, et al., (16-3176-BLS2) • Exhibit N: Protective Order, Aaron Delaroche v. The Job Center, LLC, (2279cv00151) • Exhibit O: Protective Order, Thulio Felisberto v. David Dumdey, et al., (D. Mass 1:19- cv-12062-JGD) Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 1 Exhibit A Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 2 August 29, 2023 Noah S. Kaitin +1 617 526 6240 (t) By Email +1 617 526 5000 (f) noah.kaitin@wilmerhale.com Christopher G. Long David J. Zuares Murphy & Riley, P.C. One Adams Place, 859 Willard Street, Suite 310 Quincy, MA 02169 Re: Jane Doe v. Eliot Community Human Services Inc., et al. (2381CV00934) Dear Counsel: I write on behalf of Jane Doe concerning Eliot’s responses to our interrogatories dated August 4, 2023 in the case cited above. As you know, Eliot failed to provide its responses within 45 days, waiving its objections. We agreed to a further thirty-seven-day extension of the answers based on the understanding that Eliot would provide substantive responses at that time. However, there are many significant deficiencies. We have set out examples of these deficiencies below. • Interrogatory 1: Eliot’s suggestion that this interrogatory calls for privileged information is plainly wrong. To the contrary, Rule 26(b)(1) explicitly confirms that a party may obtain discovery about “the identity and location of persons having knowledge of any discoverable matter.” We also disagree that this interrogatory is vague, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence. This is a standard interrogatory, and Defendants have asked Jane Doe the same question in their Interrogatory 10. Please confirm by September 6, 2023, that you have identified all individuals known to Eliot to have relevant knowledge and the nature and substance of their knowledge. • Interrogatory 3: Eliot states that it is attaching the potentially relevant insurance policies in Exhibit 6, but this production is incomplete. Exhibit 6 appears to include only the declarations and schedules for the insurance policies and not the forms and endorsements that are part of the policies. Please confirm that you will either answer the interrogatory or produce the rest of the policies by September 6. • Interrogatory 4: We disagree that this interrogatory is compound, overly broad, vague, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence. On the contrary, the interrogatory is directly relevant to Eliot’s failure to take reasonable steps to protect Jane Doe from sexual exploitation and failure to exercise reasonable care in the retention and supervision of Eliot Employees at the Atlantic House. The instructions also specified a relevant period, from June 6, 2001 to the present, and the period, at a minimum, should include the when Doe lived at the Atlantic Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 3 Christopher G. Long David J. Zuares August 29, 2023 Page 2 House. Moreover, we have already provided a more than five-week extension based on your agreement to provide substantive responses to the interrogatories (rather than just an agreement to supplement). Please confirm that you will update Eliot’s response by September 6, 2023 to identify — as requested — all persons who held any formal or informal supervisory or management authority over the Atlantic House or any Eliot Employee who worked at the Atlantic House and the nature of each such person’s role. As the interrogatory specified, this should include all persons who supervised other supervisors up to the President/CEO and Board of Directors. • Interrogatory 5: We disagree that this interrogatory is compound, overly broad, vague, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence. On the contrary, the interrogatory is directly relevant to our client’s claims for Eliot’s failure to take reasonable steps to protect her from sexual exploitation and to exercise reasonable care in the retention and supervision of Eliot Employees at the Atlantic House. The instructions also specified a relevant period, from June 6, 2001 to the present. Your answer does not even come close to responding to the interrogatory. You contend that trainings were provided to all employees but have not identified any of the requested information, including for each such training, the identity of the persons who planned or provided the training; the identity of the persons who attended the training; the subjects covered in the training session; the identity of all training materials or other documents provided during the training session; the persons responsible for coordinating the training session and training materials; and the identity of any documents reflecting sign in or attendance logs for each such training. Nor have you identified any formal or informal training sessions addressing the risk of sexual abuse or sexual exploitation of Atlantic House residents. Please confirm that you will update Eliot’s response no later than September 6, 2023. If you refuse to do so, we will seek to exclude any evidence at trial of employee training beyond the brief statement in your response and the three documents contained in Exhibit 2. • Interrogatory 6: Again, the objections have been waived. We also disagree that this interrogatory is compound, overly broad, vague, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence. On the contrary, the interrogatory is directly relevant to our client’s claims for Eliot’s failure to take reasonable steps to protect Jane Doe from sexual exploitation and failure to exercise reasonable care in the retention and supervision of Eliot Employees at the Atlantic House. The instructions also specified a relevant period, from June 6, 2001 to the present. Once again, your answer does not even come close to responding to the interrogatory. You state that Eliot provides “its employees” with “many documents” but have not identified which employees have received these documents or which documents each received. Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 4 Christopher G. Long David J. Zuares August 29, 2023 Page 3 Please confirm that you will update Eliot’s response no later than September 6, 2023. Again, if you refuse to do so, we will seek to exclude any evidence at trial of manuals and policies provided to employees beyond the brief statement in your response and the three documents contained in Exhibit 2. • Interrogatory 7: We disagree that this interrogatory is compound, overly broad, vague, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence. On the contrary, the interrogatory is directly relevant to Jane Doe’s claims. We also disagree that it would require the disclosure of privileged information — the identities of persons involved in an investigation and the nature of each person’s role in the investigation are not privileged. Moreover, we have already provided a more than five-week extension based on your agreement to provide substantive responses to the interrogatories (rather than just an agreement to supplement). There is thus no basis for your refusal to answer at this time. Please confirm that you will update Eliot’s response no later than September 6, 2023. • Interrogatory 8: We disagree that this interrogatory is compound, overly broad, vague, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence. On the contrary, the interrogatory is directly relevant to Doe’s claims that Eliot was aware of the risk that she could be sexually exploited and failed to exercise reasonable care to protect her from that risk. We also disagree that the requested information is privileged, and any privacy concerns can be addressed with a protective order or by redacting personally identifying information. See Roman Cath. Bishop of Springfield v. Travelers Cas. & Sur. Co., 2008 WL 650392, at *2 (Mass. Super. Jan. 7, 2008). Once again, your answer does not come close to responding to the scope of the question. We requested information on all reports of sexual abuse or sexual exploitation in a residential program operated by Eliot. The question was not limited to allegations of (in your words) “an Eliot staff member assisting a client engaging in commercial sexual acts.” See Pierce v. C.R.C. Line, Inc., 2006 WL 2848018, at *1–2 (Mass. Super. Oct. 4, 2006) (ordering a defendant to produce “statements about sexual harassment” received by the defendant over a five-year period whose content was unrelated to the plaintiff); see also Bobo v. Mitsubishi Motors Corp., 1999 WL 1318951, at *1 (Mass. Super. Mar. 8, 1999) (reprimanding a defendant for not turning over evidence of incidents similar to the plaintiff’s). • Interrogatory 9: We disagree that this interrogatory is compound, overly broad, vague, unduly burdensome, or not reasonably calculated to lead to the discovery of admissible evidence. On the contrary, the interrogatory is directly relevant to our client’s claims for Eliot’s failure to take reasonable steps to protect her from sexual exploitation and failure to exercise reasonable care in the retention and supervision of Eliot Employees at the Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 5 Christopher G. Long David J. Zuares August 29, 2023 Page 4 Atlantic House. We also disagree that the requested information is privileged, and any concerns about privacy can be addressed with a protective order. There is no excuse for refusing to respond to this question. Cf. Roman Cath. Bishop of Springfield v. Travelers Cas. & Sur. Co., 2008 WL 650409, at *5–6 (Mass. Super. Jan. 7, 2008) (ordering production of “documents which contain a report of rape or sexual assault” and rejecting objections related to the “scope and burdensome nature of [the] discovery request); Rolli v. Melenevskaya, 2001 WL 1334321, at *2 (Mass. Super. July 26, 2001) (permitting broad discovery in a negligent supervision action); see also In re HEB Grocery Co., L.P., 375 S.W.3d 497, 506 (Tex. App. 2012) (ordering production of employment records including “job performance evaluations” for each employee “working in the area where” a customer was injured in a failure to train action). Thank you in advance for your prompt attention to the above. If it would help you, we are available to meet and confer on any of the deficiencies raised above. Of course, we reserve all rights with respect to all responses and objections moving forward. Sincerely, /s/ Noah Kaitin Noah Kaitin Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 6 Exhibit B Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 7 From: Kaitin, Noah To: David Zuares; Christopher G. Long Cc: WH Jane Doe v ECHS et al Subject: Doe v. ECHS, et al. (2381CV00934) Date: Tuesday, September 12, 2023 8:51:55 PM Attachments: 2023-09-12 -- Doe Responses to Defs First Interrogatories_Redacted.pdf Hi David and Chris, I hope you both are having a nice evening. Doe’s responses to Defendants’ Interrogatories are attached for service. One thing came up that we’d like to flag for you. Given Doe’s pseudonymity and the nature of this matter, both parties should enter a confidentiality agreement/protective order respecting the sensitivity of the information at issue. I have thus redacted our client’s signature, as she signed in her true name. The unredacted signature page is available for your inspection, and we will send it along as soon as you confirm that her name and signature will be kept confidential. Best, Noah Noah Kaitin | WilmerHale He/Him/His 60 State Street Boston, MA 02109 (c) +1 781 820 6751 (o) +1 617 526 6240 noah.kaitin@wilmerhale.com Please consider the environment before printing this email. This email message and any attachments are being sent by Wilmer Cutler Pickering Hale and Dorr LLP, are confidential, and may be privileged. If you are not the intended recipient, please notify us immediately—by replying to this message or by sending an email to postmaster@wilmerhale.com—and destroy all copies of this message and any attachments. Thank you. Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 8 Exhibit C Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 9 September 14, 2023 Noah S. Kaitin +1 617 526 6240 (t) By Email +1 617 526 5000 (f) noah.kaitin@wilmerhale.com David J. Zuares Christopher G. Long Murphy & Riley, P.C. One Adams Place, 859 Willard Street, Suite 310 Quincy, MA 02169 Re: Jane Doe v. Eliot Community Human Services Inc., et al. (2381CV00934) Counsel: I write on behalf of Jane Doe concerning Eliot’s responses to our Request for Production of Documents, dated August 4, 2023. We agreed to a significant extension to Eliot’s response date based on the understanding that Eliot would provide a substantive production at that time. However, Eliot failed to provide its production on the agreed-upon date. Moreover, there are many significant remaining deficiencies. For some requests, Eliot has refused to produce documents that are plainly relevant to the case. For others, Eliot has been vague on what it is producing and what it is withholding. As you know, Superior Court Rule 30A requires a party objecting to an RFP to confirm that all responsive documents have been produced or, if not, to “describe the nature of all responsive documents or things in the possession, custody, or control of the responding party that have not been produced because of the objection.” Similarly, Mass. R. Civ. P. 26(b)(5) requires a party making a claim of privilege to “describe the nature of the documents, communications, or tangible things not produced or disclosed.” As these rules confirm, Eliot must expressly confirm, for each request, whether it is agreeing to produce all responsive, non-privileged documents or whether, instead, it is providing only some subset of the responsive documents and withholding others. It has failed to do so. We have set out examples of these deficiencies below. • RFPs 1, 2, 3, 14: We disagree that these requests are overly broad in time and scope, ambiguous, unduly burdensome, seek irrelevant documents or things, or are not reasonably calculated to lead to the discovery of admissible evidence in this action. Instead, each focuses on documents directly relevant to Doe’s claims. We also fail to see how Eliot’s own documents would be subject to grand jury secrecy. It is unclear from your responses whether Eliot is agreeing to provide all responsive, non-privileged documents or whether, instead, it is providing only some subset of the documents and withholding others. For each of these RFPs, please confirm whether you are producing all responsive, non-privileged documents in your possession, custody, or control. If you are not providing all responsive documents, please describe, as required by Rule 30A, Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 10 David J. Zuares Christopher G. Long September 14, 2023 Page 2 “the nature of the documents, communications, or tangible things not produced or disclosed” no later than September 22, 2023. Please also confirm (1) when we will receive the remaining documents referenced in your responses that you are still reviewing and (2) when we will receive a privilege log for any documents you are withholding as purportedly privileged or based on your claim of grand jury secrecy. • RFP 4: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. Eliot’s documents related to Ashley Goodrich’s termination are directly relevant to the issues in the case, and there is no basis for refusing to provide them. There are no relevant privileges, and any concerns about privacy can be addressed with a protective order. Please confirm that you will provide these documents no later than September 22, 2023. If you continue to refuse, we will move to compel them. • RFPs 5 and 6: We disagree that these requests are overly broad in time and scope, ambiguous, unduly burdensome, seek irrelevant documents or things, or are not reasonably calculated to lead to the discovery of admissible evidence in this action. Eliot’s employment files for the Eliot employees and officers who worked at the Atlantic or who had supervisory or management authority over the Atlantic House or its employees “while Jane Doe resided there” are directly relevant to the issues in the case, and there is no basis for refusing to provide them. There are no relevant privileges, and privacy protections for employment files are qualified, not absolute. Employment files must be produced when “[t]here is []sufficient relevance between the personnel records requested and the action at bar to warrant their discovery,” see Fitzgerald v. Morrison, 2002 WL 389872, at *2 (Mass. Super. Jan. 10, 2002), as is the case here. Any confidentiality concerns can be addressed with a protective order. Please confirm that you will provide these documents no later than September 22, 2023. If you continue to refuse, we will move to compel them. • RFP 7: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. In Exhibit 2, you produced a handbook and two policy summaries. The request asked for more than just the manuals and policies themselves; it also asked for documents “concerning” the manuals and policies, including, e.g., any internal, non-privileged communications relating to the manuals and policies. It is unclear from your response whether Eliot has searched for or is withholding internal communications relating to the manuals and policies. As required by Superior Court Rule 30A, please either confirm that you are producing all responsive, non-privileged documents in your possession, custody, or control, or if you are not, Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 11 David J. Zuares Christopher G. Long September 14, 2023 Page 3 please describe “the nature of the documents, communications, or tangible things not produced or disclosed,” no later than September 22, 2023. • RFP 8: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. In Exhibit 2, you produced a handbook and two policy summaries. The request asked for more than manuals and policies; it also asked for documents concerning all formal and informal training sessions for Eliot employees while Jane Doe resided there. It is unclear from your response whether Eliot is withholding documents relating to training sessions or whether there were simply no training sessions. As required by Superior Court Rule 30A, please either confirm that you are producing all responsive, non-privileged documents in your possession, custody, or control, or if you are not, please describe “the nature of the documents, communications, or tangible things not produced or disclosed,” no later than September 22, 2023. As Doe previously stated in connection with her Interrogatory No. 5, if Eliot refuses to provide discovery concerning the training sessions it has purportedly provided to employees, we will seek to exclude any evidence at trial of employee training beyond the three documents contained in Exhibit 2. • RFPs 9, 10, and 11: We disagree that these requests are overly broad in time and scope, ambiguous, unduly burdensome, seek irrelevant documents or things, or are not reasonably calculated to lead to the discovery of admissible evidence in this action. We take it from your response that Exhibits 1 and 4 identify every Eliot employee at the Atlantic House (1) who worked at the Atlantic House or who interacted with Jane Doe in any capacity and the nature of each such person’s interactions (RFP 9), (2) who had supervisory or management authority over the Atlantic House or its employees and the nature of that authority (RFP 10), and (3) who participated in the investigation of the events described in the Complaint (RFP 11). Please let us know if this understanding is mistaken. Beyond that issue, however, we are also confused by an apparent lack of documents concerning the identity of Eliot’s higher-level corporate employees or officers, located at the company’s headquarters, with supervisory or management authority over the Atlantic House and its employees and the nature of that authority. As required by Superior Court Rule 30A, please confirm whether you are withholding documents sufficient to provide this information. If the organizational chart you offered to produce in your August 31 letter suffices in your opinion, please provide the chart no later than September 22, 2023. • RFPs 12 and 13: We disagree that these requests are overly broad in time and scope, ambiguous, unduly burdensome, seek irrelevant documents or things, or are not reasonably calculated to lead to the discovery of admissible evidence in this action. In Exhibits 1, 3, and 4, you produced some internal reports, a single text message, and some Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 12 David J. Zuares Christopher G. Long September 14, 2023 Page 4 communications with the DCF and EEC. The requests encompass, however, not only formal reports and communications but also all other documents relating to the investigations, including, e.g., any internal, non-privileged communications relating to the investigations. We expect that these almost certainly exist. We take it from your response and August 31 letter that Eliot may be withholding internal communications and other documents relating to the investigations. As required by Superior Court Rule 30A, please either confirm that you are producing all responsive, non-privileged documents in your possession, custody, or control, or if you are not, please describe “the nature of the documents, communications, or tangible things not produced or disclosed,” no later than September 22, 2023. Please also confirm when we will receive a privilege log for any documents you are withholding as purportedly privileged. • RFP 14: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. To the contrary, the interrogatory is directly relevant to our client’s claims that she was sexually exploited by Ashley Goodrich and that Eliot failed to exercise reasonable care to protect her from that risk. We also fail to see how Eliot’s documents would be subject to grand jury secrecy, and any privacy concerns can be addressed with a protective order. It is unclear from your responses whether Eliot is agreeing to provide all responsive, non-privileged documents or some subset of the documents. As required by Superior Court Rule 30A, please either confirm that you are producing all responsive, non-privileged documents in your possession, custody, or control, or if you are not, please describe “the nature of the documents, communications, or tangible things not produced or disclosed,” no later than September 22, 2023. Please also confirm when we will receive a privilege log for any documents you are withholding as purportedly privileged or based on your claim of grand jury secrecy. • RFP 15: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. Eliot’s knowledge of any other reports or allegations of sexual abuse, sexual exploitation, or sex trafficking of persons enrolled in its programs is directly relevant to our client’s claims that Eliot was aware of the risk that she could be sexually exploited and failed to exercise reasonable care to protect her from that risk. We also fail to see how these documents would be subject to privileges apart from the attorney-client and work product privileges. Any privacy concerns can be addressed with a protective order. See Pierce v. C.R.C. Line, Inc., 2006 WL 2848018, at *1–2 (Mass. Super. Oct. 4, 2006) (ordering a defendant to produce “statements about sexual harassment” received by the defendant over a five-year period whose content was unrelated to the plaintiff); Bobo v. Mitsubishi Motors Corp., 1999 WL 1318951, at *1 (Mass. Super. Mar. 8, 1999) (reprimanding a defendant for not Date Filed 10/20/2023 10:19 PM Superior Court - Middlesex Docket Number 2381CV00934 13 David J. Zuares Christopher G. Long September 14, 2023 Page 5 turning over evidence of incidents similar to the plaintiff’s); see also In re Subpoena Duces Tecum, 445 Mass. 685, 689, 840 N.E.2d 470, 474 (2006) (discussing the use of an agreed-upon protective order to protect possible “privacy interests” relating to sexual abuse); Doe v. Lyons, 1996 WL 751531, at *7 (Mass. Super. Dec. 23, 1996) (same). We also would be amenable to Eliot redacting the names of any other victims from the requested documents. See Lyons, 1996 WL 751531, at *7. Please confirm that you will provide these documents no later than September 22, 2023. If you continue to refuse, we will move to compel them. • RFP 16: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. In Exhibit 5, you produced a Statement of Work, two handbooks, and two narratives. This production is clearly incomplete. It omits, for example, the Master Agreement and other contract documents referenced in the Statement of Work and the agreements’ financial terms. These documents are directly relevant to our client’s claims for breach of contract. Please confirm that Eliot will provide a complete set of its contracts with the DCF, EEC, or any other governmental entity concerning the Atlantic House no later than September 22, 2023. If you refuse to do so, we will move to compel them. • RFP 17: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. Eliot’s communications with the DCF, the EEC, or any other governmental entity concerning the relevant contracts and investigations or notices of violations concerning the Atlantic House are directly relevant to the issues in the case, and there is no basis for refusing to provide them. We also fail to see any relevant privileges, and any concerns about privacy, confidentiality, or trade secrets can be addressed with a protective order. Please confirm that you will provide these documents no later than September 22, 2023. If you refuse to do so, we will move to compel them. • RFP 18: We disagree that this request is overly broad in time and scope, ambiguous, unduly burdensome, seeks irrelevant documents or things, or is not reasonably calculated to lead to the discovery of admissible evidence in this action. We would like to obtain, at a minimum, the policies and the defendants’ communications with the insurers and any agents concerning this case or any other potential claims by Doe. You state that the policies will be made available for inspection and copying at your offices. We would like to obtain an electronic copy of the complete policies. Please confirm that you will provide this, as you have the other documents that you have agreed to produce no later than September 22, 2023. If you are unwilling to do so, please expl