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COMMONWEALTH OF MASSACBUSETTS
BERKSHIRE, ss SUPERIOR COURT DEPARTMENT
BERKSHIRE DIVISION
NO: 1976 CV 00202
BRIAN DOYLE,
d.b.a. Midnav Aircraft Support, and
MICHAEL MILAZZO
Plaintiffs
(Counterclaim Defendants) HUSETTS
ae CONMONWEALIH OF MASSACCOUR
BERKSHIRE S.S. SUPERIOR T
VS. F
J. ROUGEAU REHAB, INC., L
E FEB 27 2024
DEREK ROUGEAU, "Vat Sagi
DODD ROUGEAU and
JACQUELINE ROUGEAU
Defendants
(Counterclaim Plaintiffs)
D iE. FENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO COMPEL DISCOVERY
In accordance with Superior Court Rule 9A(a)(3), the Defendants offer the following
reply to the Plaintiffs’ Opposition to Defendants’ Motion to Compel Discovery. This reply is
limited to unforeseen matters and inaccurate statements Plaintiffs have raised.
I. Plaintiffs’ Opposition to Interregatory 19 Relies on Inaccurate Unsupported Statements
Plaintiffs claim in their Opposition that:
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 non-
payment of rent and taxes. There was no third party to sell the hangar to and any
Joss 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.
The above quote is filled with disputed, if not glaringly inaccurate, factual assertions and
argumentative conclusions unsupported by affidavits and not otherwise apparent in the record.
Vs
wo
The Defendants dispute many of the above statements and assert that the arguments made
are misleading. For instance, the excavator situation allegedly happened two weeks, not one
week, before the City took back the building. A demolition permit was never denied; rather, one
was not obtained in time, although efforts were made. The unauthorized partial demolition of
the hangar, which the Defendants allege was carried out by the Plaintiffs, damaged items and
material that could otherwise have been salvaged for value, even if there was no buyer for the
building. It also led to a stop work order by the City, which prevented salvaging items that were
not damaged in this manner. Because the building belonged to the parties at the time this
occurred, there was valuable material that otherwise could have been salvaged. For these
reasons and, because the Plaintiffs’ statements are rooted in disputed factual accounts, the
Plaintiffs’ argument that there was no loss must fail for purposes of this Motion.
The Plaintiffs are certainty welcome to argue whatever they want, however they want, in
front of a jury or by way of a timely motion to dismiss or motion or summary judgment.
However, the Plaintiffs’ arguments for why the Defendants did not suffer the losses they claim
they did are immaterial to the Defendants’ right to inquire into the highly relevant questions
conceming the excavator that likely inflicted the damage alleged.
i. Plaintiffs’ Assertion of a Fifth Amendment Privilege
With Respect to Interrogatory 19 Was Not Timely Raised
Although the Plaintiffs now assert a Fifth Amendment privilege to providing information
about the excavator, the Plaintiffs also state in their Opposition, and state correctly, “The rule
requires the party to expressly make the claim”. It should be noted that, in their original
objection to answering the Interrogatory, the Plaintiffs did not make a Fifth Amendment claim,
25
in fact they made no claims of privilege whatsoever until now. Because they did not assert any
privileges in responding to the Interrogatory, they should be barred from doing so now.
UL. Plaintiffs’ Opposition Erroneously Characterizes Interrogatory No. 23 to Brian Doyl
as Being a Repeat of an Earlier Interrogatory Which Was Never Served
Interrogatory 23 is not a repeat of one asked previously, although the Plaintiff states that
it is in their Opposition. Plaintiffs are conflating the Interrogatory with an earlier Request for
Production of Documents (tax returns). The present Interrogatory asks (for the first time) if these
retums were ever filed in the first place.
The Plaintiffs’ response to the earlier request for documents stated tax returns were not
retained, but did not state whether they were ever filed. That lack of clarity gave rise to this
Interrogatory which is neither complicated nor burdensome to answer and the Plaintiff should be
required to answer it even if he is not required to tum over the documents it contemplates.
IV. Plaintiff Doyle’s Tax Returns Are Relevant and
Are Within His Control Because He is Entitled By Right in jes fri he TR:
The Defendants have also demanded that the tax returns referenced above, redacted of
personal information, be turned over if they do exist. The Plaintiffs appear to argue the
information obtained from these documents will not be helpful to the Defendants’ case. The
Plaintiffs state: “Even if the Plaintiffs revenue had increased...that would not mean that he was
not deprived out of additional revenue by the Defendants”. Again, this is an argument to be
made at trial; not in a discovery motion. It goes to the weight, not the relevance, of the evidence.
The Defendant could conversely argue that if the Plaintiff's revenues were minimal before the
issues giving rise to the litigation (which may or may not be true depending on what discovery
reveals), there may not have been advantageous relations to damage to begin with. Alternately, a
3/5
hypothetical opposing party, once seeing this information, might be persuaded to offer or accept
a settlement they otherwise might not. This is precisely why this information is relevant. It is a
missing piece of the puzzle that may confirm or refute certain claims. It must be noted that the
Plaintiffs have already stated they do not have other business records supporting their claims.
It is also dubious to claim that an order compelling discovery would create a burden,
unprecedented by existing legal authority, of the Plaintiff being “ordered to obtain documents
from a third party”. The documents being discussed here are Mr. Doyle’s own tax returns related
to his aviation maintenance business. The “third party”, if it is even necessary to go to one for
these documents, is the United States Internal Revenue Service. To start with, it is nothing short
of astounding that the Plaintiff would not have kept copies of his tax returns going back as
recently as three years ago. Secondly, even assuming this were true, the Plaintiff by right, can
Tequest these documents at any time from the IRS. Although there are fees for requesting
original returns, the Plaintiff could request Defendants cover these or, if refused, request a
protective order that they do. The Plaintiff
has never sought these costs from the Defendants.
The reference by the Plaintiffs to Strom vs. American Honda Motor Co., Inc., 423 Mass.
330, (1996), is particularly harmful to their own argument. This case is actually a textbook of
the reasons the Plaintiffs should be required to tum over the documents requested. In Strom, the
Court rejected the doctrine that a party can only be compelled to obtain materials from third
parties when it has a “legal right to control” of the information, thereby expanding discovery to
include legally separate affiliated parent and subsidiary corporations. Jd.
However, the decision never limited discovery from third parties to parent and subsidiary
corporations and was never a rejection of the already established doctrine that, where a party
does have a legal right to control information, he is required to furnish it in discovery.
4/5
The rule we adopt today attributes sufficient control for purposes of requiring discovery
whenever the claimant has met his burden of showing that the information sought is in
the possession or custody of a wholly owning parent (or virtually wholly owning) or
wholly owned (or virtually wholly owned) subsidiary corporation, or of a corporation
affiliated through such a parent or subsidiary. We do not hold that such a relationship
is necessary to a finding of control, only that it is sufficient.
fa. at 342, emphasis added.
Certainly, the right of a taxpayer to request his tax return accords equal, if not greater
control, inasmuch as in these cases, the taxpayer has a legal right to obtain the documents.
Respectfully Submitted,
THE DEFENDANTS (Counterclaim Plaintiffs)
J. ROUGEAU REHAB, INC.
DEREK ROUGEAU,
DODD ROUGEAU, and
JACQUELINE ROUGEAU
By their attorney:
Chivan 6 Spe
Hussain A. Hamdan
Mass. B.B.O. No. 699139
45 Pudding Hollow Road
Hawley, Massachusetts 01339
Tel: 413-339-5320
February 27, 2024 Email: Hussain.
A. Hamdan@gmail.com
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the foregoing “Defendants’ Reply to Plaintiffs’ Opposition to
Defendants’ Motion to Compel Discovery”, was served upon Attorney Bruce Green, the attorney
of record for Plaintiffs Brian Doyle and Michael Milazzo, today, February 27, 2024 via Priority
Mail to the following address:
Attorney Bruce Green
110 Airport Road, Room 114
Westfield, MA 01085
Xin gaet O- Spr >
Hussain A. Hamdan
5/5
Preview
( COMMONWEALTH OF MASSACBUSETTS BERKSHIRE, ss SUPERIOR COURT DEPARTMENT BERKSHIRE DIVISION NO: 1976 CV 00202 BRIAN DOYLE, d.b.a. Midnav Aircraft Support, and MICHAEL MILAZZO Plaintiffs (Counterclaim Defendants) HUSETTS ae CONMONWEALIH OF MASSACCOUR BERKSHIRE S.S. SUPERIOR T VS. F J. ROUGEAU REHAB, INC., L E FEB 27 2024 DEREK ROUGEAU, "Vat Sagi DODD ROUGEAU and JACQUELINE ROUGEAU Defendants (Counterclaim Plaintiffs) D iE. FENDANTS’ REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL DISCOVERY In accordance with Superior Court Rule 9A(a)(3), the Defendants offer the following reply to the Plaintiffs’ Opposition to Defendants’ Motion to Compel Discovery. This reply is limited to unforeseen matters and inaccurate statements Plaintiffs have raised. I. Plaintiffs’ Opposition to Interregatory 19 Relies on Inaccurate Unsupported Statements Plaintiffs claim in their Opposition that: 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 non- payment of rent and taxes. There was no third party to sell the hangar to and any Joss 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. The above quote is filled with disputed, if not glaringly inaccurate, factual assertions and argumentative conclusions unsupported by affidavits and not otherwise apparent in the record. Vs wo The Defendants dispute many of the above statements and assert that the arguments made are misleading. For instance, the excavator situation allegedly happened two weeks, not one week, before the City took back the building. A demolition permit was never denied; rather, one was not obtained in time, although efforts were made. The unauthorized partial demolition of the hangar, which the Defendants allege was carried out by the Plaintiffs, damaged items and material that could otherwise have been salvaged for value, even if there was no buyer for the building. It also led to a stop work order by the City, which prevented salvaging items that were not damaged in this manner. Because the building belonged to the parties at the time this occurred, there was valuable material that otherwise could have been salvaged. For these reasons and, because the Plaintiffs’ statements are rooted in disputed factual accounts, the Plaintiffs’ argument that there was no loss must fail for purposes of this Motion. The Plaintiffs are certainty welcome to argue whatever they want, however they want, in front of a jury or by way of a timely motion to dismiss or motion or summary judgment. However, the Plaintiffs’ arguments for why the Defendants did not suffer the losses they claim they did are immaterial to the Defendants’ right to inquire into the highly relevant questions conceming the excavator that likely inflicted the damage alleged. i. Plaintiffs’ Assertion of a Fifth Amendment Privilege With Respect to Interrogatory 19 Was Not Timely Raised Although the Plaintiffs now assert a Fifth Amendment privilege to providing information about the excavator, the Plaintiffs also state in their Opposition, and state correctly, “The rule requires the party to expressly make the claim”. It should be noted that, in their original objection to answering the Interrogatory, the Plaintiffs did not make a Fifth Amendment claim, 25 in fact they made no claims of privilege whatsoever until now. Because they did not assert any privileges in responding to the Interrogatory, they should be barred from doing so now. UL. Plaintiffs’ Opposition Erroneously Characterizes Interrogatory No. 23 to Brian Doyl as Being a Repeat of an Earlier Interrogatory Which Was Never Served Interrogatory 23 is not a repeat of one asked previously, although the Plaintiff states that it is in their Opposition. Plaintiffs are conflating the Interrogatory with an earlier Request for Production of Documents (tax returns). The present Interrogatory asks (for the first time) if these retums were ever filed in the first place. The Plaintiffs’ response to the earlier request for documents stated tax returns were not retained, but did not state whether they were ever filed. That lack of clarity gave rise to this Interrogatory which is neither complicated nor burdensome to answer and the Plaintiff should be required to answer it even if he is not required to tum over the documents it contemplates. IV. Plaintiff Doyle’s Tax Returns Are Relevant and Are Within His Control Because He is Entitled By Right in jes fri he TR: The Defendants have also demanded that the tax returns referenced above, redacted of personal information, be turned over if they do exist. The Plaintiffs appear to argue the information obtained from these documents will not be helpful to the Defendants’ case. The Plaintiffs state: “Even if the Plaintiffs revenue had increased...that would not mean that he was not deprived out of additional revenue by the Defendants”. Again, this is an argument to be made at trial; not in a discovery motion. It goes to the weight, not the relevance, of the evidence. The Defendant could conversely argue that if the Plaintiff's revenues were minimal before the issues giving rise to the litigation (which may or may not be true depending on what discovery reveals), there may not have been advantageous relations to damage to begin with. Alternately, a 3/5 hypothetical opposing party, once seeing this information, might be persuaded to offer or accept a settlement they otherwise might not. This is precisely why this information is relevant. It is a missing piece of the puzzle that may confirm or refute certain claims. It must be noted that the Plaintiffs have already stated they do not have other business records supporting their claims. It is also dubious to claim that an order compelling discovery would create a burden, unprecedented by existing legal authority, of the Plaintiff being “ordered to obtain documents from a third party”. The documents being discussed here are Mr. Doyle’s own tax returns related to his aviation maintenance business. The “third party”, if it is even necessary to go to one for these documents, is the United States Internal Revenue Service. To start with, it is nothing short of astounding that the Plaintiff would not have kept copies of his tax returns going back as recently as three years ago. Secondly, even assuming this were true, the Plaintiff by right, can Tequest these documents at any time from the IRS. Although there are fees for requesting original returns, the Plaintiff could request Defendants cover these or, if refused, request a protective order that they do. The Plaintiff has never sought these costs from the Defendants. The reference by the Plaintiffs to Strom vs. American Honda Motor Co., Inc., 423 Mass. 330, (1996), is particularly harmful to their own argument. This case is actually a textbook of the reasons the Plaintiffs should be required to tum over the documents requested. In Strom, the Court rejected the doctrine that a party can only be compelled to obtain materials from third parties when it has a “legal right to control” of the information, thereby expanding discovery to include legally separate affiliated parent and subsidiary corporations. Jd. However, the decision never limited discovery from third parties to parent and subsidiary corporations and was never a rejection of the already established doctrine that, where a party does have a legal right to control information, he is required to furnish it in discovery. 4/5 The rule we adopt today attributes sufficient control for purposes of requiring discovery whenever the claimant has met his burden of showing that the information sought is in the possession or custody of a wholly owning parent (or virtually wholly owning) or wholly owned (or virtually wholly owned) subsidiary corporation, or of a corporation affiliated through such a parent or subsidiary. We do not hold that such a relationship is necessary to a finding of control, only that it is sufficient. fa. at 342, emphasis added. Certainly, the right of a taxpayer to request his tax return accords equal, if not greater control, inasmuch as in these cases, the taxpayer has a legal right to obtain the documents. Respectfully Submitted, THE DEFENDANTS (Counterclaim Plaintiffs) J. ROUGEAU REHAB, INC. DEREK ROUGEAU, DODD ROUGEAU, and JACQUELINE ROUGEAU By their attorney: Chivan 6 Spe Hussain A. Hamdan Mass. B.B.O. No. 699139 45 Pudding Hollow Road Hawley, Massachusetts 01339 Tel: 413-339-5320 February 27, 2024 Email: Hussain. A. Hamdan@gmail.com CERTIFICATE OF SERVICE Thereby certify that a true copy of the foregoing “Defendants’ Reply to Plaintiffs’ Opposition to Defendants’ Motion to Compel Discovery”, was served upon Attorney Bruce Green, the attorney of record for Plaintiffs Brian Doyle and Michael Milazzo, today, February 27, 2024 via Priority Mail to the following address: Attorney Bruce Green 110 Airport Road, Room 114 Westfield, MA 01085 Xin gaet O- Spr > Hussain A. Hamdan 5/5