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COMMONWEALTH OF MASSACHUSETTS 45 RR
HAMPSHIRE, ss. : SUPERIOR COURT
CIVIL ACTION NO. 1580CV227
DIETZ CONSTRUCTION CORP.,
Plaintiff,
ve
JAMES J. WELCH & CO., INC. AND BERKLEY
REGIONAL INSURANCE COMPANY DIRECTLY
AND THROUGH ITS AGENT BERKLEY SURETY
GROUP, LLC,
Defendants.
NON-PARTY, RICHARD C. RELICH’S, MEMORANDUM OF LAW IN SUPPORT OF
HIS MOTION FOR PROTECTIVE ORDER
Non-Party, Richard C. Relich, hereby submits this Memorandum of Law in support of his
‘Motion for Protective Order in which he moves the Court to enter a protective order against the
Plaintiff, Dietz Construction Corp. (“Dietz”), requiring Dietz to bear all of the costs of discovery,
including but not limited to costs for the retrieval of electronically stored information, and
limiting the scope of the discovery from Mr. Relich.
I FACTUAL BACKGROUND
Mr. Relich was served with nearly identical Subpoenas directed to him as Manager of
Arch Street Development LLC and President of CS Associates, Inc., Manager of Cottage Square
Assoc., LLC (“Cottage Square”), and as General Partner of Cottage Square Apartments Limited
Partnership (together the “Subpoenas”). The Subpoenas are attached hereto as Exhibit A.
Cottage Square is the owner of a construction project located at 15 Cottage Street in East
15758383-v1Hampton, Massachusetts which was known as the “Cottage Square Apartments” (“the Project”).
The Plaintiff in this case was apparently a subcontractor of the Defendant, James J. Welch &
Co., Inc. (“Welch”), who was the general contractor for the Project. The Subpoenas required
Mr. Relich to appear for a deposition on Thanksgiving Day and contained requests for thousands
of pages of documents. Most of the documents sought were sent or received by parties to the
above captioned action and likely could be or were already produced through discovery requests
in this action. Many other of the requests are impossible to comply with because they require
Mr. Relich to ascertain what work was performed by Dietz at the request of the general
contractor and he does not have that level of specific knowledge to make that determination.
Counsel for Dietz contacted Cottage Square’s counsel on October 7, 2016, claiming that
Dietz is.owed $18,000 for the installation of two drains at the Project. (Affidavit of Jonathan
Hausner, attached hereto as Exhibit B at 5). Later that day, Dietz’s counsel provided a draft of
an unsigned purported change order dated June 28, 2015 from Welch to Dietz regarding the
installation of the two drains at issue. (Id. at 6). Counsel for Dietz was advised on October 10,
2016 that there was no contractual relationship between Dietz and Cottage Square for work on
the Project, and that the fact that Welch never submitted the change order to Cottage Square
‘suggested the installation of the two drains at issue were likely within the scope of work Welch
agreed to perform for Cottage Square, making this an issue between Dietz and Welch, not
Cottage Square. (Id. at | 7). The Subpoenas from Dietz followed. (Id. at ] 8). Counsel for
Cottage Square also attempted in good faith to agree upon limiting the scope of the Subpoenas.
(Id. at § 9). Counsel for Dietz refused. (Id. at { 9). Now, non-party, Cottage Square, moves fora protective order limiting the scope of the Subpoenas and postponing any necessary deposition
in this case to a mutually convenient date and time in February 201 7!
Il. ARGUMENT
A. This Court may issue a protective order against the Plaintiff to protect Mer,
Relich from undue burden or expense upon a showing of good cause for the
issuance of the order. .
“Subpoenas duces tecum are subject to supervision by the presiding judge to prevent
oppressive, unnecessary, irrelevant, and other improper inquiry and investigation.” Massad v.
Entrust Capital Mgmt., 2006 Mass. Super. LEXIS 509 at *3 (Mass. Super. Ct. 2006) (citing
Cronin v. Strayer, 392 Mass. 525, 535-36 (Mass. 1984)). Mass. R. Civ. P. 26(c) provides that
“[u]pon motion by a party or by the person from whom discovery is sought, and for good cause
shown, the court in which the action is pending or alternatively, on matters relating to a
deposition, the court in the county or judicial district, as the case may be, where the deposition is
to be taken may make any order which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense...” Mass. R. Civ. P. 26(c).
Rule 26(c) places the burden of persuasion on the party seeking the protective order. To
overcome the presumption, the party seeking the protective order must show good cause by
demonstrating a particular need for protection. Broad allegations of harm, unsubstantiated by
specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.
1. Good cause exists for a protective order because strict compliance
with the Subpoenas would pose an undue burden and expense to Mr.
Relich and Cottage Square.
The Subpoenas present an undue burden to Mr. Relich and the Cottage Square companies
because they are extremely overly broad, and request the production of documents beyond the
' Even should the Court limit the scope of the Subpoenas it will take a substantial amount of time for Mr.
Relich to identify and compile documents. Counsel for Cottage Square is scheduled to start jury selection in
connection with another case in early December with the trial commencing in early January for at least three weeks.
3scope permitted by the rules of procedure. Mass. R. Civ. P. 26(b)(1) states that “[p]arties may
obtain discovery regarding any matter, not privileged, which is relevant to the subject matter
involved in the pending action, whether it relates to the claim or defense of the party seeking
discovery or to the claim or defense of any other party.” Mass. R. Civ. P. 26(b)(1). In an
evidentiary context, Massachusetts courts have defined “relevance” as having “two components:
(1) the evidence must have some tendency to prove a particular fact; and (2) that particular fact
must be material to an issue in the case.” Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485
(2004).
Dietz’s claim here is that it is due from Welch an additional $18,000 beyond the contract
price it agreed upon with Welch to perform certain work on the Project. The only fact or subject
matter relevant and material to Dietz’s claim or any defense of Welch’s is whether the
installation of the two drains at issue was within the scope of the work that Dietz agreed to
perform for Welch, In order to resolve its claim, Dietz must determine what its agreed upon
scope of work was with Welch; if the installation of the two drains.at issue was outside of that
scope of work, it may have a claim against Welch. If the installation of the drains was within the
scope of work, it has no claim against anyone and merely underestimated the cost of the work it
agreed to perform. In any case, Dietz had no contractual relationship with Mr. Relich or any of
the Cottage Square companies, and under no circumstances are Mr. Relich or the Cottage Square
companies contractually liable to Dietz for thé $18,000 it claims it is owed. Cottage Square is
not a party to this action and Dietz has asserted no claims against Cottage Square.
Similarly, because the Subpoenas are overly broad, strict compliance with their terms
, would pose an undue burden and expense to Mr. Relich and the Cottage Square companies. The
requests for documents contained in the Subpoenas require the retrieval and production ofelectronically stored information that is months and years old, a task that presents a significant
expenditure of time and money under any circumstances. In this case, requiring Mr. Relich or the
Cottage Square companies to bear the expense of producing any of this information when such
production is not required by Massachusetts law would necessarily render the time and expense
involved undue.
Of the fifteen identical enumerated paragraphs in Dietz’s two Subpoenas to Mr. Relich
setting out documents to be produced, only three are arguably relevant to the subject matter
involved in the present action, namely, whether the installation of the two drains at issue was
within the scope of work that Dietz agreed to perform for Welch. Those three paragraphs are:
paragraph one, requesting all communications pertaining to Change Order No. 10, which was a
draft change order never actually submitted, setting out the estimated cost of the drain
installation;? paragraph two, requesting all communications relating to the installation of the
drains at issue; and paragraph three, requesting all documents relating to communications with
certain persons who worked on the Project regarding the work involved in the installation of the
drains at issue. Thus, Mr. Relich respectfully requests that this Court so limit Dietz’s Subpoena.
B. This Court may, and should, further order that the Plaintiff bear the costs of
any discovery obtained from Mr. Relich, as he is a non-party witness.
A Massachusetts court may, on the basis that a subpoena is burdensome and overbroad,
or because it is in any way otherwise unreasonable, award the costs of complying with a - ©
subpoena to a non-party witness. See e.g. Macaulay v. DiPalma, 2013 Mass. App. Unpub.
LEXIS 769 at *15 (2013) (“Reasonable costs of producing documents may, in a judge's
discretion, be awarded to a nonparty witness under Mass. R. Civ. P. 45(b), 365 Mass. 809
2 A “change order” is a request for an alteration to the contract price which may be submitted by one party to a
construction contract to another. See e.g. Commonwealth v. Borans, 379 Mass. 117, 129 (1979). In this case, the
draft changed order, contained in Exhibit B, was drafted from Welch to Dietz.
5(1974).”); Mass. R. Civ. P. 45(b).? Because Mr. Relich is a nonparty, the Subpoenas impose an
undue burden and expense upon him and Cottage Square; and the Subpoenas are unreasonably
broad.
As stated above, in the instant action between Dietz and Welch, Dietz’s claim is that it is
due from Welch an additional $18,000 beyond the contract price it agreed upon with Welch to
perform certain work on the Project. Thus, the only fact relevant to the subject matter of the
litigation between Dietz and Welch is whether the installation of the two drains at issue was
within the scope of work that Dietz agreed to perform for Welch. Accordingly, the demands
from Dietz for the production of documents contained in paragraphs four through fifteen of the
Subpoenas are overly broad, as they are not relevant to the issue at the heart of the Dietz-Welch
litigation — whether the installation of the two drains at issue was within the scope of work that
Dietz agreed to perform for Welch.
Specifically, paragraphs six, seven, eleven, thirteen, and fifteen are overly broad because
the requested documents have no tendency to prove any material fact relevant to the subject
matter of the above-captioned case. Paragraph six of the Subpoenas requests all communications
which relate to any delay that Cottage Square asserts was directly caused by Dietz on the Project.
Paragraph seven of the Subpoenas requests all documents and communications relating to the
amount of monies Cottage Square owes to Welch. Similarly to paragraph seven, paragraph
eleven of the Subpoenas requests all documents relating to the amount of monies Cottage Square
“alleges” that it owes to Welch. Paragraph thirteen-of the Subpoenas requests all documents or
3 (“A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing,
undue burden or expense on a person subject to the subpoena. The court upon motion made promptly and in any
event at or before the time specified in the subpoena for conipliance therewith, may (1) quash or modify the
subpoena if it is unreasonable and oppressive of (2) condition denial of the motion upon the advancement by the
person in whose behalf the subpoena is issued of the reasonable cost of producing the documents, electronically
stored information, or tangible things.”)communications between Cottage Square and any architect concerning the Project. Paragraph
fifteen of the Subpoenas requests all documents relating to any lien waivers Cottage Square
directly or indirectly received from Welch concerning work performed on, or materials supplied
to, the Project. None of the documents requested in these paragraphs would have any tendency to
prove whether or not the installation of the two drains at issue was within the scope of work that
Dietz agreed to perform for Welch.
Further, several of the enumerated paragraphs of the subpoenas are so extremely overly
broad as to be unreasonable and oppressive. Paragraph four of the Subpoenas requests all
documents relating to why Cottage Square did not pay Welch or Dietz for the work and materials
that Dietz provided in installing the drains at issue. Paragraph five of the Subpoenas requests all
job meeting minutes relating to any work performed by Dietz on the project. Paragraph eight of
the Subpoenas requests all documents and communications between Cottage Square and
Defendant Berkley Regional Insurance Company pertaining to Dietz’s claim on Welch’s
payment and lien bond relating to the Project. Paragraph nine of the Subpoenas requests all
documents and communications relating communications between Cottage Square and Welch .
regarding Welch’s non-payment of subcontractors for work or materials provided to the Project.
Similarly to paragraph nine, paragraph ten of the Subpoenas requests all documents and
communications relating communications between Cottage Square and anyone concerning _
Welch’s non-payment of subcontractors for work or materials provided to the Project. Paragraph
twelve of the Subpoenas requests all documents and communications relating to any
communications that Welch had with Cottage Square or any architect concerning the Project that
relate to the work or materials Dietz supplied to the Project. Paragraph fourteen of the Subpoenas
requests all documents relating to any requisitions or change orders directly or indirectlysubmitted to Welch or to Cottage Square for work performed or Labor provided by Dietz. The
requests contained within these paragraphs are overly broad not only because they request
information from Mr. Relich, a.non-party, that is likely already in the possession of Dietz or
Welch, but because production of the voluminous sets of documents requested therein’ would
pose an unreasonable expense to Cottage Square.
As such, this Court should order that Plaintiff bear the costs of any discovery it orders
produced pursuant to the Subpoenas.
C. If required, the Court should order the postponement of Mr. Relich’s
deposition and compliance with the Subpoenas to a mutually
convenient day and time in February 2017, which this Court has the
power to do in ruling upon this Motion.
Pursuant to its authority to rule upon this Motion for Protective Order, this Court may
make orders as to the scheduling of depositions. See e.g. Meschi v. Iverson, 60 Mass. App. Ct.
678, 680-81 (2004) (discussing a litigant’s request for an order rescheduling a deposition as part
of the litigant’s motion for protective order and the court’s ruling thereon). The same Mass. R.
Civ. P. 26(c) factors to be taken into account when determining whether this Court should issue
an order protecting a person from whom discovery is sought from compliance with a subpoena
duces tecum may be applied to determining whether and when to order such a person to appear,
or not appear, for a deposition.* The Subpoenas as served initially sought compliance and the :
deposition of Mr. Relich on Thanksgiving Day. (Exhibit A). Counsel for Cottage Square
complained to Plaintiff's counsel regarding the selection of the date for compliance and he
agreed to move the date to early December, 2016. (Id.). However, even if the Court orders the
scope of the Subpoenas narrowed, it will take Mr. Relich substantial time away from his
4 See Mass. R. Civ. P. 26(c) (“Upon motion by . . . the person from whom discovery is sought, and for good cause
shown, the court... may make any order which justice requires ... including. . . that the discovery may be had
only on specified terms and conditions, including a designation of the time, place, or manner. . . .”)
8businesses to identify and gather the documents at issue. (Exhibit B at § 10). Moreover, lead
counsel for Cottage Square is set to begin jury selection for a trial in early December. (Id. at J
11). It is anticipated that jury selection will take approximately two weeks. (Id. at { 12). The
trial itself is scheduled to commence in January 2017, and is expected to last three weeks. ad. at
13). Taking the aforementioned facts into account, it is clear that compliance with the
Subpoenas commanding Mr. Relich to appear and be deposed on December 1 would be unduly
burdensome and unjust, as such compliance would deprive Mr. Relich of representation by the
attorney of his choosing and a reasonable time to identify and gather the necessary documents
and electronically stored information. As such, to the extent the Court orders compliance at all
with the Subpoenas, Mr. Relich and Cottage Square respectfully request until the second week of
February 2017 to comply.
Il. CONCLUSION
Based upon the forgoing, Mr. Relich respectfully submits that the Court should grant his
Motion for Protective Order by limiting the scope of the Subpoenas as indicated herein,
postponing the deposition of Mr. Relich and ordering Dietz to bear the costs of discoveryobtained from Mr. Relich, including but not limited to costs for the retrieval of electronically
stored information.
RICHARD C. RELICH,
By his attorneys,
ROBINSON & COLE LLP
Mne Boston Place
Boston, MA 02108
(617) 557-5928
pstrniste@rc.com
jhausner@rc.com
Dated: November 23, 2016
CERTIFICATE OF SERVICE
I, Jonathan R. Hausner, hereby certify that on this 23 day of November, 2016, a copy of
the foregoing was served via first class mail, postage pre-paid, addressed to the following
counsel of record:
Alan M. Cohen, Esq.
Glenn G. Wegrzyn, Esq.
Law Offices of Alan M. Cohen LLC
550 Worcester Road
Framingham, Massachusetts 01702
10
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COMMONWEALTH OF MASSACHUSETTS 45 RR HAMPSHIRE, ss. : SUPERIOR COURT CIVIL ACTION NO. 1580CV227 DIETZ CONSTRUCTION CORP., Plaintiff, ve JAMES J. WELCH & CO., INC. AND BERKLEY REGIONAL INSURANCE COMPANY DIRECTLY AND THROUGH ITS AGENT BERKLEY SURETY GROUP, LLC, Defendants. NON-PARTY, RICHARD C. RELICH’S, MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR PROTECTIVE ORDER Non-Party, Richard C. Relich, hereby submits this Memorandum of Law in support of his ‘Motion for Protective Order in which he moves the Court to enter a protective order against the Plaintiff, Dietz Construction Corp. (“Dietz”), requiring Dietz to bear all of the costs of discovery, including but not limited to costs for the retrieval of electronically stored information, and limiting the scope of the discovery from Mr. Relich. I FACTUAL BACKGROUND Mr. Relich was served with nearly identical Subpoenas directed to him as Manager of Arch Street Development LLC and President of CS Associates, Inc., Manager of Cottage Square Assoc., LLC (“Cottage Square”), and as General Partner of Cottage Square Apartments Limited Partnership (together the “Subpoenas”). The Subpoenas are attached hereto as Exhibit A. Cottage Square is the owner of a construction project located at 15 Cottage Street in East 15758383-v1Hampton, Massachusetts which was known as the “Cottage Square Apartments” (“the Project”). The Plaintiff in this case was apparently a subcontractor of the Defendant, James J. Welch & Co., Inc. (“Welch”), who was the general contractor for the Project. The Subpoenas required Mr. Relich to appear for a deposition on Thanksgiving Day and contained requests for thousands of pages of documents. Most of the documents sought were sent or received by parties to the above captioned action and likely could be or were already produced through discovery requests in this action. Many other of the requests are impossible to comply with because they require Mr. Relich to ascertain what work was performed by Dietz at the request of the general contractor and he does not have that level of specific knowledge to make that determination. Counsel for Dietz contacted Cottage Square’s counsel on October 7, 2016, claiming that Dietz is.owed $18,000 for the installation of two drains at the Project. (Affidavit of Jonathan Hausner, attached hereto as Exhibit B at 5). Later that day, Dietz’s counsel provided a draft of an unsigned purported change order dated June 28, 2015 from Welch to Dietz regarding the installation of the two drains at issue. (Id. at 6). Counsel for Dietz was advised on October 10, 2016 that there was no contractual relationship between Dietz and Cottage Square for work on the Project, and that the fact that Welch never submitted the change order to Cottage Square ‘suggested the installation of the two drains at issue were likely within the scope of work Welch agreed to perform for Cottage Square, making this an issue between Dietz and Welch, not Cottage Square. (Id. at | 7). The Subpoenas from Dietz followed. (Id. at ] 8). Counsel for Cottage Square also attempted in good faith to agree upon limiting the scope of the Subpoenas. (Id. at § 9). Counsel for Dietz refused. (Id. at { 9). Now, non-party, Cottage Square, moves fora protective order limiting the scope of the Subpoenas and postponing any necessary deposition in this case to a mutually convenient date and time in February 201 7! Il. ARGUMENT A. This Court may issue a protective order against the Plaintiff to protect Mer, Relich from undue burden or expense upon a showing of good cause for the issuance of the order. . “Subpoenas duces tecum are subject to supervision by the presiding judge to prevent oppressive, unnecessary, irrelevant, and other improper inquiry and investigation.” Massad v. Entrust Capital Mgmt., 2006 Mass. Super. LEXIS 509 at *3 (Mass. Super. Ct. 2006) (citing Cronin v. Strayer, 392 Mass. 525, 535-36 (Mass. 1984)). Mass. R. Civ. P. 26(c) provides that “[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the county or judicial district, as the case may be, where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...” Mass. R. Civ. P. 26(c). Rule 26(c) places the burden of persuasion on the party seeking the protective order. To overcome the presumption, the party seeking the protective order must show good cause by demonstrating a particular need for protection. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test. 1. Good cause exists for a protective order because strict compliance with the Subpoenas would pose an undue burden and expense to Mr. Relich and Cottage Square. The Subpoenas present an undue burden to Mr. Relich and the Cottage Square companies because they are extremely overly broad, and request the production of documents beyond the ' Even should the Court limit the scope of the Subpoenas it will take a substantial amount of time for Mr. Relich to identify and compile documents. Counsel for Cottage Square is scheduled to start jury selection in connection with another case in early December with the trial commencing in early January for at least three weeks. 3scope permitted by the rules of procedure. Mass. R. Civ. P. 26(b)(1) states that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Mass. R. Civ. P. 26(b)(1). In an evidentiary context, Massachusetts courts have defined “relevance” as having “two components: (1) the evidence must have some tendency to prove a particular fact; and (2) that particular fact must be material to an issue in the case.” Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004). Dietz’s claim here is that it is due from Welch an additional $18,000 beyond the contract price it agreed upon with Welch to perform certain work on the Project. The only fact or subject matter relevant and material to Dietz’s claim or any defense of Welch’s is whether the installation of the two drains at issue was within the scope of the work that Dietz agreed to perform for Welch, In order to resolve its claim, Dietz must determine what its agreed upon scope of work was with Welch; if the installation of the two drains.at issue was outside of that scope of work, it may have a claim against Welch. If the installation of the drains was within the scope of work, it has no claim against anyone and merely underestimated the cost of the work it agreed to perform. In any case, Dietz had no contractual relationship with Mr. Relich or any of the Cottage Square companies, and under no circumstances are Mr. Relich or the Cottage Square companies contractually liable to Dietz for thé $18,000 it claims it is owed. Cottage Square is not a party to this action and Dietz has asserted no claims against Cottage Square. Similarly, because the Subpoenas are overly broad, strict compliance with their terms , would pose an undue burden and expense to Mr. Relich and the Cottage Square companies. The requests for documents contained in the Subpoenas require the retrieval and production ofelectronically stored information that is months and years old, a task that presents a significant expenditure of time and money under any circumstances. In this case, requiring Mr. Relich or the Cottage Square companies to bear the expense of producing any of this information when such production is not required by Massachusetts law would necessarily render the time and expense involved undue. Of the fifteen identical enumerated paragraphs in Dietz’s two Subpoenas to Mr. Relich setting out documents to be produced, only three are arguably relevant to the subject matter involved in the present action, namely, whether the installation of the two drains at issue was within the scope of work that Dietz agreed to perform for Welch. Those three paragraphs are: paragraph one, requesting all communications pertaining to Change Order No. 10, which was a draft change order never actually submitted, setting out the estimated cost of the drain installation;? paragraph two, requesting all communications relating to the installation of the drains at issue; and paragraph three, requesting all documents relating to communications with certain persons who worked on the Project regarding the work involved in the installation of the drains at issue. Thus, Mr. Relich respectfully requests that this Court so limit Dietz’s Subpoena. B. This Court may, and should, further order that the Plaintiff bear the costs of any discovery obtained from Mr. Relich, as he is a non-party witness. A Massachusetts court may, on the basis that a subpoena is burdensome and overbroad, or because it is in any way otherwise unreasonable, award the costs of complying with a - © subpoena to a non-party witness. See e.g. Macaulay v. DiPalma, 2013 Mass. App. Unpub. LEXIS 769 at *15 (2013) (“Reasonable costs of producing documents may, in a judge's discretion, be awarded to a nonparty witness under Mass. R. Civ. P. 45(b), 365 Mass. 809 2 A “change order” is a request for an alteration to the contract price which may be submitted by one party to a construction contract to another. See e.g. Commonwealth v. Borans, 379 Mass. 117, 129 (1979). In this case, the draft changed order, contained in Exhibit B, was drafted from Welch to Dietz. 5(1974).”); Mass. R. Civ. P. 45(b).? Because Mr. Relich is a nonparty, the Subpoenas impose an undue burden and expense upon him and Cottage Square; and the Subpoenas are unreasonably broad. As stated above, in the instant action between Dietz and Welch, Dietz’s claim is that it is due from Welch an additional $18,000 beyond the contract price it agreed upon with Welch to perform certain work on the Project. Thus, the only fact relevant to the subject matter of the litigation between Dietz and Welch is whether the installation of the two drains at issue was within the scope of work that Dietz agreed to perform for Welch. Accordingly, the demands from Dietz for the production of documents contained in paragraphs four through fifteen of the Subpoenas are overly broad, as they are not relevant to the issue at the heart of the Dietz-Welch litigation — whether the installation of the two drains at issue was within the scope of work that Dietz agreed to perform for Welch. Specifically, paragraphs six, seven, eleven, thirteen, and fifteen are overly broad because the requested documents have no tendency to prove any material fact relevant to the subject matter of the above-captioned case. Paragraph six of the Subpoenas requests all communications which relate to any delay that Cottage Square asserts was directly caused by Dietz on the Project. Paragraph seven of the Subpoenas requests all documents and communications relating to the amount of monies Cottage Square owes to Welch. Similarly to paragraph seven, paragraph eleven of the Subpoenas requests all documents relating to the amount of monies Cottage Square “alleges” that it owes to Welch. Paragraph thirteen-of the Subpoenas requests all documents or 3 (“A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing, undue burden or expense on a person subject to the subpoena. The court upon motion made promptly and in any event at or before the time specified in the subpoena for conipliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive of (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the documents, electronically stored information, or tangible things.”)communications between Cottage Square and any architect concerning the Project. Paragraph fifteen of the Subpoenas requests all documents relating to any lien waivers Cottage Square directly or indirectly received from Welch concerning work performed on, or materials supplied to, the Project. None of the documents requested in these paragraphs would have any tendency to prove whether or not the installation of the two drains at issue was within the scope of work that Dietz agreed to perform for Welch. Further, several of the enumerated paragraphs of the subpoenas are so extremely overly broad as to be unreasonable and oppressive. Paragraph four of the Subpoenas requests all documents relating to why Cottage Square did not pay Welch or Dietz for the work and materials that Dietz provided in installing the drains at issue. Paragraph five of the Subpoenas requests all job meeting minutes relating to any work performed by Dietz on the project. Paragraph eight of the Subpoenas requests all documents and communications between Cottage Square and Defendant Berkley Regional Insurance Company pertaining to Dietz’s claim on Welch’s payment and lien bond relating to the Project. Paragraph nine of the Subpoenas requests all documents and communications relating communications between Cottage Square and Welch . regarding Welch’s non-payment of subcontractors for work or materials provided to the Project. Similarly to paragraph nine, paragraph ten of the Subpoenas requests all documents and communications relating communications between Cottage Square and anyone concerning _ Welch’s non-payment of subcontractors for work or materials provided to the Project. Paragraph twelve of the Subpoenas requests all documents and communications relating to any communications that Welch had with Cottage Square or any architect concerning the Project that relate to the work or materials Dietz supplied to the Project. Paragraph fourteen of the Subpoenas requests all documents relating to any requisitions or change orders directly or indirectlysubmitted to Welch or to Cottage Square for work performed or Labor provided by Dietz. The requests contained within these paragraphs are overly broad not only because they request information from Mr. Relich, a.non-party, that is likely already in the possession of Dietz or Welch, but because production of the voluminous sets of documents requested therein’ would pose an unreasonable expense to Cottage Square. As such, this Court should order that Plaintiff bear the costs of any discovery it orders produced pursuant to the Subpoenas. C. If required, the Court should order the postponement of Mr. Relich’s deposition and compliance with the Subpoenas to a mutually convenient day and time in February 2017, which this Court has the power to do in ruling upon this Motion. Pursuant to its authority to rule upon this Motion for Protective Order, this Court may make orders as to the scheduling of depositions. See e.g. Meschi v. Iverson, 60 Mass. App. Ct. 678, 680-81 (2004) (discussing a litigant’s request for an order rescheduling a deposition as part of the litigant’s motion for protective order and the court’s ruling thereon). The same Mass. R. Civ. P. 26(c) factors to be taken into account when determining whether this Court should issue an order protecting a person from whom discovery is sought from compliance with a subpoena duces tecum may be applied to determining whether and when to order such a person to appear, or not appear, for a deposition.* The Subpoenas as served initially sought compliance and the : deposition of Mr. Relich on Thanksgiving Day. (Exhibit A). Counsel for Cottage Square complained to Plaintiff's counsel regarding the selection of the date for compliance and he agreed to move the date to early December, 2016. (Id.). However, even if the Court orders the scope of the Subpoenas narrowed, it will take Mr. Relich substantial time away from his 4 See Mass. R. Civ. P. 26(c) (“Upon motion by . . . the person from whom discovery is sought, and for good cause shown, the court... may make any order which justice requires ... including. . . that the discovery may be had only on specified terms and conditions, including a designation of the time, place, or manner. . . .”) 8businesses to identify and gather the documents at issue. (Exhibit B at § 10). Moreover, lead counsel for Cottage Square is set to begin jury selection for a trial in early December. (Id. at J 11). It is anticipated that jury selection will take approximately two weeks. (Id. at { 12). The trial itself is scheduled to commence in January 2017, and is expected to last three weeks. ad. at 13). Taking the aforementioned facts into account, it is clear that compliance with the Subpoenas commanding Mr. Relich to appear and be deposed on December 1 would be unduly burdensome and unjust, as such compliance would deprive Mr. Relich of representation by the attorney of his choosing and a reasonable time to identify and gather the necessary documents and electronically stored information. As such, to the extent the Court orders compliance at all with the Subpoenas, Mr. Relich and Cottage Square respectfully request until the second week of February 2017 to comply. Il. CONCLUSION Based upon the forgoing, Mr. Relich respectfully submits that the Court should grant his Motion for Protective Order by limiting the scope of the Subpoenas as indicated herein, postponing the deposition of Mr. Relich and ordering Dietz to bear the costs of discoveryobtained from Mr. Relich, including but not limited to costs for the retrieval of electronically stored information. RICHARD C. RELICH, By his attorneys, ROBINSON & COLE LLP Mne Boston Place Boston, MA 02108 (617) 557-5928 pstrniste@rc.com jhausner@rc.com Dated: November 23, 2016 CERTIFICATE OF SERVICE I, Jonathan R. Hausner, hereby certify that on this 23 day of November, 2016, a copy of the foregoing was served via first class mail, postage pre-paid, addressed to the following counsel of record: Alan M. Cohen, Esq. Glenn G. Wegrzyn, Esq. Law Offices of Alan M. Cohen LLC 550 Worcester Road Framingham, Massachusetts 01702 10