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(*)
COMMONWEALTH OF MASSACHUSETTS
BERKSHIRE, ss SUPERIOR COURT DEPARTMENT
BERKSHIRE DIVISION
NO: 2076 CV-142
BRIAN DOYLE,
dba Midnav Aircraft Support,
MICHAEL MILAZZO,
Plaintiffs
OPPOSITION TO DEFENDANT'S
¥. MOTION TO COMPEL
-
eee e
J. ROUGEAU REHAB Inc.,
DEREK ROUGEAU, oe COAONWEALIH OF WASSALHUSETTS
JACKIE ROUGEAU and BERKSHIRE S.S. SUPERIOR COURT
F
DODD ROUGEAU |
Defendants L
FEB 27 2024 —E |
OPPOSITION
The Defendant’s discovery request was invalid
pa ge
On August 14, 2023 the court ordered discovery completed by October 13, 2023. The court did
not extend discovery to October 13 as the defendant’s claim, but ordered it completed by that
date.
It is true that both the parties tendered late discovery requests, the Plaintiffs served theirs on
October 10 and the Defendants served theirs on the Plaintiff's on October 12. The request served
by the Defendants requested, among other things, expert witness information.
The plaintiff realized it the ill-fated nature of these discovery requests and as they had disclosed
expert information 5 days after the October 13" date, asked the court for leave to do so. The
Plaintiffs did this despite the fact that the information was disclosed to the Defendants in a timely
manner with regard to their October 12 discovery request.
Even though this disclosure was100% timely in regards to Defendant's request, they opposed the
Plaintiff's motion for late disclosure. So at least when they filed their opposition, they were of
the opinion that their ill fated request did not serve to alter the court’s order. The Defendants
took a position that the Plaintiffs were late with other discovery disclosures and that the late
disclosure was a result of their own delays. In their opposition, they noted that “the court
provided a 60 day period ending on October 13, 2023 to complete discovery” but they did not
mention that because they had filed a discovery request on October 12, this time period was
“extended.”
The discovery request made by the Defendant’s one day before the court ordered the discovery
completed cannot serve to change the court’s order. As this is the position that the Defendant’s
took in their previous opposition, they should not be allowed to take the opposite
position now and the court should deny the motion to compel.
Specific Interrogatory Requests
Interrogatory 19 This requests information regarding an excavator that was present in
the hangar at one point. The Defendants assert without any basis that this excavator
was used to cause voluntary waste. Paragraph 81 of the Defendant’s pleadings claims that this
seriously devalued the property and the price that the hangar could have been sold to a third party
suffered accordingly. Anything related to an excavator would have been about a week before the
ownership of the building reverted to the City of North Adams because of the non-payment of
rent and taxes. There was no third party to sell the hangar to and any loss suffered by the parties
was speculative if not imaginary. This is the same hangar that the Defendant’s removed siding
from after being denied a demolition permit indicating that the Defendant’s had no hope or desire
to sell to a third party.
Mass.R.Civ.P. 26(b)(1) allows discovery when the information sought appears reasonablely
calculated to lead to the discovery of admissible evidence. The Defendant’s have not articulated
a scenario whereby the information sought would lead to such discovery nor have they cited any
authority in support of their request.
Mass.R.Civ.P. 26(c)(3) allows a court to consider the likely benefits of receipt of the information
as well as the amount in controversy. As there is no loss that could be demonstrated here, the
information would be of no benefit.
Mass.R.Civ.P. 26(b)(5)(A) allows for a party to withhold otherwise discoverable information
when the information is privileged. The rule requires the party to expressly make the claim. In
this case, the information sought is protected by the Plaintiff's rights under the Fifth Amendment
to the United States Constitution.
Interrogatories 21 and 22 These questions are about whether the Plaintiff's have a relationship
with some people that may have used an excavator that may have been used to damage a hangar.
They failed to articulate any possible admissible evidence that this may lead to and are engaged
in aclassic fishing expedition. While the rules of discovery are liberal, they are not without
limit.
Interrogatory 23 This relates to requesting the tax returns of one of the Plaintiff's and is a repeat
of an Interrogatory asked previously. The first time it was asked, the Plaintiff answered that he
did not have the returns in his possession and this was not objected to by the Defendant’s. There
have been instances where a party has been ordered to obtain documents not in their possession
from an affiliated corporation, Strom Vs. American Honda Motor Co., Inc, 423 Mass. 330 (1996)
however the Defendants cite no authority where a party is ordered to obtain the documents from
a third party. The information sought is largely irrelevant to the claim of lost revenue. While it
might appear on the surface to be an easy answer to the question, it is not. Even if the Plaintiff's
revenue had increased by his tax return, that would not mean that he was not deprived out of
additional revenue by the Defendants. As the Plaintiff's have made claims that the Defendant’s
have done harmful things, this information in their hands could be particularly harmful.
Mass.R.Civ.P. 26(c)(3) allows for a protective order when the likely burden or expense of the
proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’
relative access to the information, the amount in controversy, the resources of the parties, the
importance of the issues, and the importance of the requested discovery in resolving the issues.
In this case, the importance of the requested discovery is minimal and should not be compelled.
In the alternative, the Plaintiff would forgo his claims under Count III for intentional damage to
advantageous relations rather than put this information in the hands of the Defendant.
Interrogatory 24 This is a request for a list of customer’s serviced. The Defendants have not
articulated a scenario where this would lead to admissible evidence. The information that the are
requesting is a list of customers, meaning people that either did not interface with the Rougeau’s
or were not deterred by their efforts. Even if all of these people were called to the witness stand
all of their testimony would be irrelevant to claims that there were others that were in fact
deterred. Mass.R.Civ.P. 26(c)(3) allows for a protective order when the likely burden or expense
of the proposed discovery outweighs the likely benefit of its receipt, taking into account the
parties’ relative access to the information, the amount in controversy, the resources of the parties,
the importance of the issues, and the importance of the requested discovery in resolving the
issues. In this case, the importance of the requested discovery is minimal and should not be
compelled. Given that the claim is that the Defendant’s have interfered with customers and
potential customers, there is no scenario whereby this information should be provided to them.
In the alternative, the Plaintiff would forgo his claims under Count II for intentional damage to
advantageous relations rather than put this information in the hands of the Defendant.
Plaintiffs,
Bruce Green
110 Airport Road Rm. 114
Westfield, MA 01085
413/568-4900
Circuit Court# 38907
BBO# 629692
DATE: February 23, 2024
>
CERTIFICATE OF SERVICE
J, Bruce Green, certify that I have caused a copy of the foregoing documents to be served on
the Defendants by delivering a copy / mailing a copy postage prepaid to their attorney on February
23, 2024
(Araey
BRUCE GREEN, ESQ
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(*) COMMONWEALTH OF MASSACHUSETTS BERKSHIRE, ss SUPERIOR COURT DEPARTMENT BERKSHIRE DIVISION NO: 2076 CV-142 BRIAN DOYLE, dba Midnav Aircraft Support, MICHAEL MILAZZO, Plaintiffs OPPOSITION TO DEFENDANT'S ¥. MOTION TO COMPEL - eee e J. ROUGEAU REHAB Inc., DEREK ROUGEAU, oe COAONWEALIH OF WASSALHUSETTS JACKIE ROUGEAU and BERKSHIRE S.S. SUPERIOR COURT F DODD ROUGEAU | Defendants L FEB 27 2024 —E | OPPOSITION The Defendant’s discovery request was invalid pa ge On August 14, 2023 the court ordered discovery completed by October 13, 2023. The court did not extend discovery to October 13 as the defendant’s claim, but ordered it completed by that date. It is true that both the parties tendered late discovery requests, the Plaintiffs served theirs on October 10 and the Defendants served theirs on the Plaintiff's on October 12. The request served by the Defendants requested, among other things, expert witness information. The plaintiff realized it the ill-fated nature of these discovery requests and as they had disclosed expert information 5 days after the October 13" date, asked the court for leave to do so. The Plaintiffs did this despite the fact that the information was disclosed to the Defendants in a timely manner with regard to their October 12 discovery request. Even though this disclosure was100% timely in regards to Defendant's request, they opposed the Plaintiff's motion for late disclosure. So at least when they filed their opposition, they were of the opinion that their ill fated request did not serve to alter the court’s order. The Defendants took a position that the Plaintiffs were late with other discovery disclosures and that the late disclosure was a result of their own delays. In their opposition, they noted that “the court provided a 60 day period ending on October 13, 2023 to complete discovery” but they did not mention that because they had filed a discovery request on October 12, this time period was “extended.” The discovery request made by the Defendant’s one day before the court ordered the discovery completed cannot serve to change the court’s order. As this is the position that the Defendant’s took in their previous opposition, they should not be allowed to take the opposite position now and the court should deny the motion to compel. Specific Interrogatory Requests Interrogatory 19 This requests information regarding an excavator that was present in the hangar at one point. The Defendants assert without any basis that this excavator was used to cause voluntary waste. Paragraph 81 of the Defendant’s pleadings claims that this seriously devalued the property and the price that the hangar could have been sold to a third party suffered accordingly. Anything related to an excavator would have been about a week before the ownership of the building reverted to the City of North Adams because of the non-payment of rent and taxes. There was no third party to sell the hangar to and any loss suffered by the parties was speculative if not imaginary. This is the same hangar that the Defendant’s removed siding from after being denied a demolition permit indicating that the Defendant’s had no hope or desire to sell to a third party. Mass.R.Civ.P. 26(b)(1) allows discovery when the information sought appears reasonablely calculated to lead to the discovery of admissible evidence. The Defendant’s have not articulated a scenario whereby the information sought would lead to such discovery nor have they cited any authority in support of their request. Mass.R.Civ.P. 26(c)(3) allows a court to consider the likely benefits of receipt of the information as well as the amount in controversy. As there is no loss that could be demonstrated here, the information would be of no benefit. Mass.R.Civ.P. 26(b)(5)(A) allows for a party to withhold otherwise discoverable information when the information is privileged. The rule requires the party to expressly make the claim. In this case, the information sought is protected by the Plaintiff's rights under the Fifth Amendment to the United States Constitution. Interrogatories 21 and 22 These questions are about whether the Plaintiff's have a relationship with some people that may have used an excavator that may have been used to damage a hangar. They failed to articulate any possible admissible evidence that this may lead to and are engaged in aclassic fishing expedition. While the rules of discovery are liberal, they are not without limit. Interrogatory 23 This relates to requesting the tax returns of one of the Plaintiff's and is a repeat of an Interrogatory asked previously. The first time it was asked, the Plaintiff answered that he did not have the returns in his possession and this was not objected to by the Defendant’s. There have been instances where a party has been ordered to obtain documents not in their possession from an affiliated corporation, Strom Vs. American Honda Motor Co., Inc, 423 Mass. 330 (1996) however the Defendants cite no authority where a party is ordered to obtain the documents from a third party. The information sought is largely irrelevant to the claim of lost revenue. While it might appear on the surface to be an easy answer to the question, it is not. Even if the Plaintiff's revenue had increased by his tax return, that would not mean that he was not deprived out of additional revenue by the Defendants. As the Plaintiff's have made claims that the Defendant’s have done harmful things, this information in their hands could be particularly harmful. Mass.R.Civ.P. 26(c)(3) allows for a protective order when the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’ relative access to the information, the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues. In this case, the importance of the requested discovery is minimal and should not be compelled. In the alternative, the Plaintiff would forgo his claims under Count III for intentional damage to advantageous relations rather than put this information in the hands of the Defendant. Interrogatory 24 This is a request for a list of customer’s serviced. The Defendants have not articulated a scenario where this would lead to admissible evidence. The information that the are requesting is a list of customers, meaning people that either did not interface with the Rougeau’s or were not deterred by their efforts. Even if all of these people were called to the witness stand all of their testimony would be irrelevant to claims that there were others that were in fact deterred. Mass.R.Civ.P. 26(c)(3) allows for a protective order when the likely burden or expense of the proposed discovery outweighs the likely benefit of its receipt, taking into account the parties’ relative access to the information, the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues. In this case, the importance of the requested discovery is minimal and should not be compelled. Given that the claim is that the Defendant’s have interfered with customers and potential customers, there is no scenario whereby this information should be provided to them. In the alternative, the Plaintiff would forgo his claims under Count II for intentional damage to advantageous relations rather than put this information in the hands of the Defendant. Plaintiffs, Bruce Green 110 Airport Road Rm. 114 Westfield, MA 01085 413/568-4900 Circuit Court# 38907 BBO# 629692 DATE: February 23, 2024 > CERTIFICATE OF SERVICE J, Bruce Green, certify that I have caused a copy of the foregoing documents to be served on the Defendants by delivering a copy / mailing a copy postage prepaid to their attorney on February 23, 2024 (Araey BRUCE GREEN, ESQ