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COMMONWEALTH OF MASSACHUSETTS ~
MIDDLESEX, SS. SUPERIOR COURT
CIVIL ACTION NO. 1581CV6327
MARGARET CREMENS SMITH,
Plaintiff
v.
JOHN LAKIN and KENNETH LAKIN,
Defendants
CONSOLIDATED WITH
MIDDLESEX, SS. SUPERIOR COURT
CIVIL ACTION NO. 1681CV890
ELIZABETHANN PARKS,
Plaintiff
V.
JOHN LAKIN and KENNETH LAKIN,
Defendants
PLAINTIFFS’ RESPONSE TO AFFIDAVIT OF KENNETH LAKIN AND AFFIDAVIT OF
JOHN LAKIN AS FILED IN SUPPORT OF DEFENDANTS’ MOTION TO SEAL AND/OR
IMPOUND CASE CAPTION, DOCKET, RECORD, AND INSTANT MOTION
Now come Plaintiffs Margaret Cremens-Smith and Elizabethann Parks and, pursuant to the
Order of the Court (Ritter, J.) at a hearing on Defendants’ Motion To Seal And/Or Impound Case
Caption, Docket, Record, And Instant Motion on April 18, 2018, hereby file this Plaintiffs’
Response to the Affidavit Of Kenneth Lakin and the Affidavit Of John Lakin, each of which were
filed and served on April 17, 2018, the day before the hearing, in support of Defendants’ Motion
To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion (hereinafter referred
to as “Defendants’ Motion To Impound”).
Defendants’ Motion To Impound should be denied, as Defendants’ late-filed affidavits do
not support a finding of good cause for closing the currently public records in the above-captioned
civil actions. Defendants through their affidavits state as grounds for their motion the impact of
litigating Plaintiffs’ childhood sexual abuse claims against the Defendants had on Defendants and
Defendants’ family members. However, Plaintiffs’ complaints were voluntarily dismissed, without
objection by Defendants, and as a result litigation in these cases, and Defendants’ and Defendants’
family members’ involvement in such litigation, is over. Moreover, Defendants’ family members,
as well as other individuals, already know about Plaintiffs’ sexual abuse claims, and Defendants’
family members learned about these claims and were involved in these cases through the actions
of the Defendants. Closing the public record in these cases would not change what these
individuals already know about these cases. Plaintiffs’ voluntary dismissal of Plaintiffs’
complaints, without objection by the Defendants, has given Defendants the same result Defendants
repeatedly requested from the Court but which had been denied. Finally, the subject matter of these
cases, childhood sexual abuse, is not a private matter for which Defendants should expect the Court
to protect Defendants’ anonymity, but rather, a serious matter of significant public concern. The
public records in these cases, which have been open to the public since the lead case was filed in
late 2015, should remain open to the public.
A. THE DEFENDANTS’ AFFIDAVITS Do NoT PROVIDE GooD CAUSE FOR
IMPOUNDMENT IN THESE CASES.
This Court should deny Defendants’ Motion To Impound on the grounds that Defendants
have not shown good cause to impound the public records of the above-captioned civil actions.!
1 Defendants’ Motion To Impound as originally filed with the Court was defective, as Defendants
failed to serve or file an affidavit in support of their motion as required by Rule 2(a)(2) of the
Uniform Rules of Impoundment Procedure. See URIP Rule 2(a)(2); URIP Rule 2, Committee
Notes; see also Mass. Super. Ct. R. 9A(a)(4). Nor did Defendants serve an affidavit in support of
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“Good cause” for an order of impoundment requires a moving party to show “overriding necessity,
which is based on specific findings.” George W. Prescott Pub. Co. v. Register of Probate, 395
Mass. 274, 279 (1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-510
(1984)). Defendants’ affidavits, however, fail to provide the factual support necessary for a finding
of good cause for impoundment of the public records in these cases. With regard to Plaintiffs’
sexual abuse claims and these cases, each Defendant states in his respective affidavit, “The
emotional and financial strain that has been put on myself, my wife, my mother, my brother, my
sister and my own children has been enormous and staggering.” See Aff't. Of Kenneth Lakin, {[ 8;
Afft. Of John Lakin, { 8. Defendants through their affidavits state as grounds for their motion the
impact litigation in these cases did have on Defendants and Defendants’ family members. Closing
the currently public record in these cases would not address these concerns. Litigation is now over,
as Plaintiffs have voluntarily dismissed Plaintiffs’ complaints without objection by the
Defendants; aside from Defendants’ Motion To Impound, Defendants’ and Defendants’ family
members’ involvement in these cases is complete. Furthermore, Defendants’ family members, as
well as others, already know about Plaintiffs’ sexual abuse claims against Defendants and the
above-captioned civil actions. Defendants themselves notified many of their respective family
members of Plaintiffs’ sexual abuse claims and Defendants have been responsible for their family
members’ involvement in the litigation of these cases while they were active. These individuals
cannot unlearn what they know and what they have heard from the Defendants already.
their motion within the time allowed by Superior Court Rule 9A for Defendants to file their motion
after receiving Plaintiffs’ Opposition to Defendants’ Motion To Impound. Instead, Defendants
waited until April 17, 2018, the day before a hearing on Defendants’ Motion To Impound, and
more than one month after Plaintiffs’ served Plaintiffs’ Opposition, to serve on Plaintiffs and file
with the Court two affidavits, one from Defendant Kenneth Lakin and one from Defendant John
Lakin, in ostensible support of Defendants’ Motion To Impound.
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It is Defendants themselves who publicized these cases and Plaintiffs’ sexual abuse claims
to the family members listed in Defendants’ affidavits, as well as to others. The Defendants
testified that Defendants told their parents, their brother, their sister, and their wives about the
Plaintiffs’ sexual abuse claims in these cases. (See John Lakin Dep. [10/27/16], a copy of which is
attached to the Affidavit Of Attorney Mitchell Garabedian In Support Of Plaintiffs’ Opposition To
Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion
[hereinafter “Garabedian Aff't.”], Ex. 14, at 56:18-22; Kenneth Lakin Dep. [4/5/17], Garabedian
Afft., Ex. 27, at 202:21-203:5.) The family members listed in Defendants’ affidavits know and
have known about Plaintiffs’ sexual abuse claims and these cases for over two years, and they
learned about these claims and these cases through the Defendants. Their knowledge of these
matters would be unaffected by impoundment of the public records in these civil actions.
Many of Defendants’ family members were or had been involved in litigation in these cases,
and Defendants themselves are responsible for their involvement. The Defendants identified their
mother, Nancy Lakin, as a fact witness in these cases. (See Def. John Lakin’s 2nd Suppl. Ans. To
Pl.’s 1st Set Of Interrogs., Garabedian Aff’t., Ex. 28, at Ans. 23; Def. Kenneth Lakin’s 2nd Suppl.
Ans. To Pl.’s 1st Set Of Interrogs., Garabedian Aff't., Ex. 29, at Ans. 23.) The parties then deposed
Defendants’ mother about Plaintiffs’ childhood sexual abuse claims in these cases. (Nancy Lakin
Dep. [10/12/16], Garabedian Afft., Ex. 31.) The Defendants identified their brother as a fact
witness in these cases, and the parties then deposed Defendants’ brother about Plaintiffs’ childhood
sexual abuse claims in these cases. (See Garabedian Aff't., Ex. 28, at Ans. 23; Garabedian Aff't.,
Ex. 29, at Ans. 23; Brian Lakin Dep. [3/6/17], Garabedian Aff't., Ex. 33.) The Defendants
identified their sister, Charlene Markussen, as a fact witness in these cases, and the parties then
deposed Defendants’ sister about Plaintiffs’ childhood sexual abuse claims in these cases. (See
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Garabedian Afft., Ex. 28, at Ans. 23; Garabedian Aff't., Ex. 29, at Ans. 23; Charlene Markussen
Dep. [4/14/17], Garabedian Afft., Ex. 34.) The Defendants identified Kenneth Lakin’s wife,
Elizabeth Lakin, as a fact witness in these cases, and the parties then deposed Elizabeth Lakin
about Plaintiffs’ childhood sexual abuse claims in these cases. (See Garabedian Aff't., Ex. 28, at
Ans. 23; Garabedian Aff't., Ex. 29, at Ans. 23; Elizabeth Lakin Dep. [4/14/17], Garabedian Aff't.,
Ex. 35.) Defendants’ family members’ involvement in these cases is complete; these cases have
been voluntarily dismissed, and Defendants’ family members will not have to testify again in these
cases. The Defendants offered their family members as witnesses, and Defendants’ family
members’ depositions were taken by the parties. The relief requested by Defendants’ Motion To
Impound would not change what Defendants’ family members’ already know about Plaintiffs’
allegations.
Nor are Defendants’ family members the only persons who do know and have known about
Plaintiffs’ sexual abuse claims against Defendants and about these cases against the Defendants.
The Defendants provided Plaintiffs with the names of two family friends, Eric Farr and Paula
Murray, as fact witnesses in these cases. (See Garabedian Aff't., Ex. 28, at Ans. 23; Garabedian
Afft., Ex. 29, at Ans. 23.) The parties deposed both Eric Farr and Paula Murray about Plaintiffs’
sexual abuse claims in these cases. (Eric Farr Dep. [11/4/16], Garabedian Aff't., Ex. 32; Paula
Murray Dep. [7/20/16], Garabedian Aff’t., Ex. 30.) To the extent that these individuals know about
and were involved in these cases, it was through the actions of the Defendants themselves.
Furthermore, individuals Defendants notified about Plaintiffs’ sexual abuse claims and these cases
have themselves notified others about Plaintiffs’ sexual abuse claims. For instance, Elizabeth
Lakin testified that she had told others about Plaintiffs’ sexual abuse claims. (See Elizabeth Lakin
Dep. [4/14/17], Garabedian Aff't., Ex. 35, at 25:15-27:6, 75:9-76:21.)
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Other individuals already know about Plaintiffs’ sexual abuse claims against the Defendants
and the above-captioned civil actions, including Defendants’ extended family members. For
instance, the parties took the depositions of the Plaintiffs’ three sisters. (See Ellen Cremens Dep.
[7/29/16], Garabedian Afft., Ex. 36; Catherine Fico Dep. [8/19/16], Garabedian Aff't., Ex. 26;
Mary Maher Dep. [8/19/16], Garabedian Aff't., Ex. 37.) Closing the public record in the above-
captioned civil actions would have no impact on what all of these individuals already know,
including what they have learned through the Defendants themselves. See Boston Herald v.
Sharpe, 432 Mass. 595, 608 (2000).
B. By DISMISssING THEIR SEXUAL ABUSE CLAIMS, THE PLAINTIFFS HAVE
GRANTED THE DEFENDANTS THE SAME RELIEF DEFENDANTS
REPEATEDLY SOUGHT FROM THE CourT IN THESE MATTERS.
The disposition of these cases without a trial should not support impoundment of the public
records in these cases. In their affidavits, each Defendant states that he was “prepared to defend
this case all the way through trial and appeal if necessary in order to protect my integrity, character,
personal and professional reputations.” Aff.’t Of Kenneth Lakin, § 2; Afft. Of John Lakin, § 2.
However, Defendants themselves twice asked the Court to dismiss the Plaintiffs’ sexual abuse
claims as a matter of law and without a finding of fact. With Defendants’ motion for summary
judgment, the Defendants asked the Court to dismiss these cases as time-barred, arguing that the
GL. c, 260, § 4C statute of limitations for torts based on childhood sexual abuse should not apply
to Plaintiffs’ claims based on acts of childhood sexual abuse that allegedly occurred before
Defendants turned 18 years of age. The Court did dismiss the negligence counts of Plaintiffs’
complaints, but denied the Defendants’ motion for summary judgment on the intentional tort
claims alleging Defendants sexually abused Plaintiffs when Plaintiffs were children. (See Memo.
Of Decision And Order On Defs.’ Mot. For Summ. J. [8/29/17], per Kern, J., Garabedian Afft.,
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Ex. 5.) The Defendants then asked the Court to revisit this same issue, and to adjudicate Plaintiffs’
sexual abuse claims without a trial, by filing a motion for reconsideration of summary judgment,
which the Court denied. (See Memo. And Decision On Defs.’ Mot. For Reconsideration Of Summ.
J. [10/31/17], per Kern, J., Garabedian Afft., Ex. 6.)
Had the Court allowed either of Defendants’ dispositive motions, Plaintiffs’ sexual abuse
claims would have been dismissed without a trial. Now, after the Plaintiffs voluntarily dismissed
their complaints — without objection by the Defendants — Defendants lament that they were unable
to defend these claims at trial. In fact, Defendants have received from Plaintiffs the same outcome
to these cases that the Defendants themselves repeatedly sought from the Court but which had been
denied. Defendants’ Motion To Impound should be denied, as the Plaintiffs have already granted
Defendants the relief Defendants repeatedly sought when Defendants asked the Court to adjudicate
these cases before trial.
In Globe Newspaper Co. v. Clerk of Suffolk County Superior Court, the Coutt, in considering
“good cause” on a motion to lift impoundment of defendants’ identities in civil cases based on
clergy sexual abuse, accepted as true that “‘in all five of the impounded cases, neither a judge nor
a jury made any findings as to whether any of the defendant clergyman in fact did or did not
sexually abuse the plaintiff children as alleged. Nor did any of the clergymen make any admission
of responsibility in any court record in these cases.” Globe Newspaper Co. v. Clerk of Suffolk
County Superior Court, 2002 Mass. Super. LEXIS 6, *24; 14 Mass. L. Rep. 315 (2002)(Gants, J.).
Those cases were resolved through a stipulation of dismissal: “Therefore, in all five of these cases
there are allegations of sexual abuse in the plaintiffs’ complaints but nothing that allows any
impartial observer to determine the merits of those allegations.” Jd. Nonetheless, in those sexual
abuse cases, the Court found that no interest, including the Defendants’ privacy rights, outweighed
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“the common law and constitutional presumption of public access to court records,” and therefore
the Court lifted the impoundment orders to make the Defendants’ names public. Jd., 2002 Mass.
Super. LEXIS 6, *28; see also Globe Newspaper Co. v. Clerk of Middlesex County Superior Court,
2002 Mass. Super. LEXIS 67, *5; 14 Mass. L. Rep. 412 (2002)(Lauriat, J.).
In these analogous cases, similar to the sexual abuse cases in Globe Newspaper Co. v. Clerk
of Suffolk County Superior Court, no findings of fact were made. The Court in these cases did,
however, rule upon Defendants’ dispositive motions, and upheld Plaintiffs’ intentional tort claims
based on childhood sexual abuse. In this matter, the Court should likewise find that Defendants’
privacy rights are outweighed by “the common law and constitutional presumption of public access
to court records,” and deny Defendants’ Motion To Impound.
C. PLAINTIFFS’ CHILDHOOD SEXUAL ABUSE CLAIMS AND THE PUBLIC
RECORDS OF THESE CIVIL ACTIONS ARE NOT PRIVATE MATTERS.
The allegations against Defendants contained in Plaintiffs’ complaints in the above-
captioned civil actions, as described in Plaintiffs’ sworn testimony, are based on childhood sexual
abuse; serious claims of intentional torts which have many of the elements of conduct considered
criminal and which is usually of significant public concern. (See Pl. Margaret Cremens-Smith’s
Ans. To Defs.’ 1st Set Of Interrogs. To Margaret Cremens-Smith, Garabedian Afft., Ex. 12, at
Ans. 5; Pl. Elizabethann Parks’s Ans. To Def. John Lakin’s 1st Set Of Interrogs. To Elizabethann
Parks, Garabedian Afft., Ex. 13, at Ans. 7; Margaret Cremens-Smith Dep. [7/8/16], Garabedian
Afft., Ex. 10, at 75:5-24, 82:22-83:7, 83:12-16, 85:4-12, 90:8-16, 98:24-101:11, 102:5-13;
Elizabethan Parks Dep. [8/5/16], Garabedian Afft., Ex. 11, at 19:2-21:4, 35:12-36:21.) In
analyzing the motion to lift the impoundment orders protecting the civil defendants in Globe
Newspaper Co. v. Clerk of Suffolk County Superior Court, the Court noted that defendants in
criminal cases “are virtually never permitted to proceed with a pseudonym, even though their
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reputations, too, may be devastated by the indictment regardless of the verdict.” Globe Newspaper
Co. v. Clerk of Suffolk County Superior Court, 2002 Mass. Super. LEXIS 6, *27.
In the above-captioned civil actions, there is evidence that at least some of the alleged
childhood sexual abuse could have taken place after the Defendants’ 18th birthday. Plaintiffs
testified that some of the alleged sexual abuse occurred in “approximately 1978.” (See Pl. Margaret
Cremens-Smith’s Ans. To Defs.’ 1st Set Of Interrogs. To Margaret Cremens-Smith, Garabedian
Afft., Ex. 12, at Ans. 5; Pl. Elizabethann Parks’s Ans. To Def. John Lakin’s 1st Set Of Interrogs.
To Elizabethann Parks, Garabedian Aff’t., Ex. 13, at Ans. 7; Margaret Cremens-Smith Dep.
[7/8/16], Garabedian Afft., Ex. 10, at 102:5-13; Elizabethann Parks Dep. [8/5/16], Garabedian
Afft., Ex. 11, at 35:12-36:21.) Defendants turned 18 in November, 1978, and were therefore over
the age of 18 for some of 1978. (See John Lakin Dep. [10/27/16], Garabedian Aff't., Ex. 14, at
8:10-8:13.) P
Moreover, older juveniles accused of serious sexual crimes against children can be indicted
and prosecuted in the same manner as adult criminal defendants. See G.L. c. 119, § 54; see
Commonwealth v. Clint C., 430 Mass. 219, 226 (1999); Commonwealth v. Todd, 87 Mass. App.
Ct. 780, 785 (2015). The records from these court proceedings are open to the public “in the same
manner and to the same extent as adult criminal court records.” G.L. c. 119, § 60A. The policy
decision to treat older juveniles accused of serious sexual crimes against children as adults and to
keep records of their court proceedings public indicates the significant public interest in protecting
children from sexual abuse. See Sliney v. Previte, 473 Mass. 283, 292 (2015).
CONCLUSION
For the reasons set forth above, and for the reasons set forth in Plaintiffs’ Opposition To
Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion
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and those stated by Plaintiffs’ Counsel at the hearing on April 18, 2018, the Court should deny
Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion.
Respectfully submitted,
By Attorneys for Plaintiffs Margaret Cremens-
Smith and Elizabethann Parks,
thee
Mitchell Garabedian, BBO #184760
mgarabedian@garabedianlaw.com
William H. Gordon, BBO #545378
wgordon@garabedianlaw.com
LAW OFFICES OF MITCHELL GARABEDIAN
100 State Street, 6th Floor
Boston, MA 02109
(617) 523-6250
CERTIFICATE OF SERVICE
I, Mitchell Garabedian, Plaintiffs’ Attorney, hereby certify that on April 30, 2018, a true
copy of the above document was served upon Christopher J. Sullivan, Esq. and Zachary H.
Hammond, Esq., Attorneys for Defendants John Lakin and Kenneth Lakin, Sullivan & Associates,
LLC, 500 West Cummings Park, Suite 4700, Woburn, MA 01801, via hand delivery.
Mob fe
Mitchell GarabedYan, BBO #184760
mgarabedian@garabedianlaw.com
LAW OFFICES OF MITCHELL GARABEDIAN
100 State Street, 6th Floor
Boston, MA 02109
(617) 523-6250
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uy COMMONWEALTH OF MASSACHUSETTS ~ MIDDLESEX, SS. SUPERIOR COURT CIVIL ACTION NO. 1581CV6327 MARGARET CREMENS SMITH, Plaintiff v. JOHN LAKIN and KENNETH LAKIN, Defendants CONSOLIDATED WITH MIDDLESEX, SS. SUPERIOR COURT CIVIL ACTION NO. 1681CV890 ELIZABETHANN PARKS, Plaintiff V. JOHN LAKIN and KENNETH LAKIN, Defendants PLAINTIFFS’ RESPONSE TO AFFIDAVIT OF KENNETH LAKIN AND AFFIDAVIT OF JOHN LAKIN AS FILED IN SUPPORT OF DEFENDANTS’ MOTION TO SEAL AND/OR IMPOUND CASE CAPTION, DOCKET, RECORD, AND INSTANT MOTION Now come Plaintiffs Margaret Cremens-Smith and Elizabethann Parks and, pursuant to the Order of the Court (Ritter, J.) at a hearing on Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion on April 18, 2018, hereby file this Plaintiffs’ Response to the Affidavit Of Kenneth Lakin and the Affidavit Of John Lakin, each of which were filed and served on April 17, 2018, the day before the hearing, in support of Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion (hereinafter referred to as “Defendants’ Motion To Impound”). Defendants’ Motion To Impound should be denied, as Defendants’ late-filed affidavits do not support a finding of good cause for closing the currently public records in the above-captioned civil actions. Defendants through their affidavits state as grounds for their motion the impact of litigating Plaintiffs’ childhood sexual abuse claims against the Defendants had on Defendants and Defendants’ family members. However, Plaintiffs’ complaints were voluntarily dismissed, without objection by Defendants, and as a result litigation in these cases, and Defendants’ and Defendants’ family members’ involvement in such litigation, is over. Moreover, Defendants’ family members, as well as other individuals, already know about Plaintiffs’ sexual abuse claims, and Defendants’ family members learned about these claims and were involved in these cases through the actions of the Defendants. Closing the public record in these cases would not change what these individuals already know about these cases. Plaintiffs’ voluntary dismissal of Plaintiffs’ complaints, without objection by the Defendants, has given Defendants the same result Defendants repeatedly requested from the Court but which had been denied. Finally, the subject matter of these cases, childhood sexual abuse, is not a private matter for which Defendants should expect the Court to protect Defendants’ anonymity, but rather, a serious matter of significant public concern. The public records in these cases, which have been open to the public since the lead case was filed in late 2015, should remain open to the public. A. THE DEFENDANTS’ AFFIDAVITS Do NoT PROVIDE GooD CAUSE FOR IMPOUNDMENT IN THESE CASES. This Court should deny Defendants’ Motion To Impound on the grounds that Defendants have not shown good cause to impound the public records of the above-captioned civil actions.! 1 Defendants’ Motion To Impound as originally filed with the Court was defective, as Defendants failed to serve or file an affidavit in support of their motion as required by Rule 2(a)(2) of the Uniform Rules of Impoundment Procedure. See URIP Rule 2(a)(2); URIP Rule 2, Committee Notes; see also Mass. Super. Ct. R. 9A(a)(4). Nor did Defendants serve an affidavit in support of -2- “Good cause” for an order of impoundment requires a moving party to show “overriding necessity, which is based on specific findings.” George W. Prescott Pub. Co. v. Register of Probate, 395 Mass. 274, 279 (1985) (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-510 (1984)). Defendants’ affidavits, however, fail to provide the factual support necessary for a finding of good cause for impoundment of the public records in these cases. With regard to Plaintiffs’ sexual abuse claims and these cases, each Defendant states in his respective affidavit, “The emotional and financial strain that has been put on myself, my wife, my mother, my brother, my sister and my own children has been enormous and staggering.” See Aff't. Of Kenneth Lakin, {[ 8; Afft. Of John Lakin, { 8. Defendants through their affidavits state as grounds for their motion the impact litigation in these cases did have on Defendants and Defendants’ family members. Closing the currently public record in these cases would not address these concerns. Litigation is now over, as Plaintiffs have voluntarily dismissed Plaintiffs’ complaints without objection by the Defendants; aside from Defendants’ Motion To Impound, Defendants’ and Defendants’ family members’ involvement in these cases is complete. Furthermore, Defendants’ family members, as well as others, already know about Plaintiffs’ sexual abuse claims against Defendants and the above-captioned civil actions. Defendants themselves notified many of their respective family members of Plaintiffs’ sexual abuse claims and Defendants have been responsible for their family members’ involvement in the litigation of these cases while they were active. These individuals cannot unlearn what they know and what they have heard from the Defendants already. their motion within the time allowed by Superior Court Rule 9A for Defendants to file their motion after receiving Plaintiffs’ Opposition to Defendants’ Motion To Impound. Instead, Defendants waited until April 17, 2018, the day before a hearing on Defendants’ Motion To Impound, and more than one month after Plaintiffs’ served Plaintiffs’ Opposition, to serve on Plaintiffs and file with the Court two affidavits, one from Defendant Kenneth Lakin and one from Defendant John Lakin, in ostensible support of Defendants’ Motion To Impound. -3- It is Defendants themselves who publicized these cases and Plaintiffs’ sexual abuse claims to the family members listed in Defendants’ affidavits, as well as to others. The Defendants testified that Defendants told their parents, their brother, their sister, and their wives about the Plaintiffs’ sexual abuse claims in these cases. (See John Lakin Dep. [10/27/16], a copy of which is attached to the Affidavit Of Attorney Mitchell Garabedian In Support Of Plaintiffs’ Opposition To Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion [hereinafter “Garabedian Aff't.”], Ex. 14, at 56:18-22; Kenneth Lakin Dep. [4/5/17], Garabedian Afft., Ex. 27, at 202:21-203:5.) The family members listed in Defendants’ affidavits know and have known about Plaintiffs’ sexual abuse claims and these cases for over two years, and they learned about these claims and these cases through the Defendants. Their knowledge of these matters would be unaffected by impoundment of the public records in these civil actions. Many of Defendants’ family members were or had been involved in litigation in these cases, and Defendants themselves are responsible for their involvement. The Defendants identified their mother, Nancy Lakin, as a fact witness in these cases. (See Def. John Lakin’s 2nd Suppl. Ans. To Pl.’s 1st Set Of Interrogs., Garabedian Aff’t., Ex. 28, at Ans. 23; Def. Kenneth Lakin’s 2nd Suppl. Ans. To Pl.’s 1st Set Of Interrogs., Garabedian Aff't., Ex. 29, at Ans. 23.) The parties then deposed Defendants’ mother about Plaintiffs’ childhood sexual abuse claims in these cases. (Nancy Lakin Dep. [10/12/16], Garabedian Afft., Ex. 31.) The Defendants identified their brother as a fact witness in these cases, and the parties then deposed Defendants’ brother about Plaintiffs’ childhood sexual abuse claims in these cases. (See Garabedian Aff't., Ex. 28, at Ans. 23; Garabedian Aff't., Ex. 29, at Ans. 23; Brian Lakin Dep. [3/6/17], Garabedian Aff't., Ex. 33.) The Defendants identified their sister, Charlene Markussen, as a fact witness in these cases, and the parties then deposed Defendants’ sister about Plaintiffs’ childhood sexual abuse claims in these cases. (See -4- Garabedian Afft., Ex. 28, at Ans. 23; Garabedian Aff't., Ex. 29, at Ans. 23; Charlene Markussen Dep. [4/14/17], Garabedian Afft., Ex. 34.) The Defendants identified Kenneth Lakin’s wife, Elizabeth Lakin, as a fact witness in these cases, and the parties then deposed Elizabeth Lakin about Plaintiffs’ childhood sexual abuse claims in these cases. (See Garabedian Aff't., Ex. 28, at Ans. 23; Garabedian Aff't., Ex. 29, at Ans. 23; Elizabeth Lakin Dep. [4/14/17], Garabedian Aff't., Ex. 35.) Defendants’ family members’ involvement in these cases is complete; these cases have been voluntarily dismissed, and Defendants’ family members will not have to testify again in these cases. The Defendants offered their family members as witnesses, and Defendants’ family members’ depositions were taken by the parties. The relief requested by Defendants’ Motion To Impound would not change what Defendants’ family members’ already know about Plaintiffs’ allegations. Nor are Defendants’ family members the only persons who do know and have known about Plaintiffs’ sexual abuse claims against Defendants and about these cases against the Defendants. The Defendants provided Plaintiffs with the names of two family friends, Eric Farr and Paula Murray, as fact witnesses in these cases. (See Garabedian Aff't., Ex. 28, at Ans. 23; Garabedian Afft., Ex. 29, at Ans. 23.) The parties deposed both Eric Farr and Paula Murray about Plaintiffs’ sexual abuse claims in these cases. (Eric Farr Dep. [11/4/16], Garabedian Aff't., Ex. 32; Paula Murray Dep. [7/20/16], Garabedian Aff’t., Ex. 30.) To the extent that these individuals know about and were involved in these cases, it was through the actions of the Defendants themselves. Furthermore, individuals Defendants notified about Plaintiffs’ sexual abuse claims and these cases have themselves notified others about Plaintiffs’ sexual abuse claims. For instance, Elizabeth Lakin testified that she had told others about Plaintiffs’ sexual abuse claims. (See Elizabeth Lakin Dep. [4/14/17], Garabedian Aff't., Ex. 35, at 25:15-27:6, 75:9-76:21.) -5- Other individuals already know about Plaintiffs’ sexual abuse claims against the Defendants and the above-captioned civil actions, including Defendants’ extended family members. For instance, the parties took the depositions of the Plaintiffs’ three sisters. (See Ellen Cremens Dep. [7/29/16], Garabedian Afft., Ex. 36; Catherine Fico Dep. [8/19/16], Garabedian Aff't., Ex. 26; Mary Maher Dep. [8/19/16], Garabedian Aff't., Ex. 37.) Closing the public record in the above- captioned civil actions would have no impact on what all of these individuals already know, including what they have learned through the Defendants themselves. See Boston Herald v. Sharpe, 432 Mass. 595, 608 (2000). B. By DISMISssING THEIR SEXUAL ABUSE CLAIMS, THE PLAINTIFFS HAVE GRANTED THE DEFENDANTS THE SAME RELIEF DEFENDANTS REPEATEDLY SOUGHT FROM THE CourT IN THESE MATTERS. The disposition of these cases without a trial should not support impoundment of the public records in these cases. In their affidavits, each Defendant states that he was “prepared to defend this case all the way through trial and appeal if necessary in order to protect my integrity, character, personal and professional reputations.” Aff.’t Of Kenneth Lakin, § 2; Afft. Of John Lakin, § 2. However, Defendants themselves twice asked the Court to dismiss the Plaintiffs’ sexual abuse claims as a matter of law and without a finding of fact. With Defendants’ motion for summary judgment, the Defendants asked the Court to dismiss these cases as time-barred, arguing that the GL. c, 260, § 4C statute of limitations for torts based on childhood sexual abuse should not apply to Plaintiffs’ claims based on acts of childhood sexual abuse that allegedly occurred before Defendants turned 18 years of age. The Court did dismiss the negligence counts of Plaintiffs’ complaints, but denied the Defendants’ motion for summary judgment on the intentional tort claims alleging Defendants sexually abused Plaintiffs when Plaintiffs were children. (See Memo. Of Decision And Order On Defs.’ Mot. For Summ. J. [8/29/17], per Kern, J., Garabedian Afft., -6- Ex. 5.) The Defendants then asked the Court to revisit this same issue, and to adjudicate Plaintiffs’ sexual abuse claims without a trial, by filing a motion for reconsideration of summary judgment, which the Court denied. (See Memo. And Decision On Defs.’ Mot. For Reconsideration Of Summ. J. [10/31/17], per Kern, J., Garabedian Afft., Ex. 6.) Had the Court allowed either of Defendants’ dispositive motions, Plaintiffs’ sexual abuse claims would have been dismissed without a trial. Now, after the Plaintiffs voluntarily dismissed their complaints — without objection by the Defendants — Defendants lament that they were unable to defend these claims at trial. In fact, Defendants have received from Plaintiffs the same outcome to these cases that the Defendants themselves repeatedly sought from the Court but which had been denied. Defendants’ Motion To Impound should be denied, as the Plaintiffs have already granted Defendants the relief Defendants repeatedly sought when Defendants asked the Court to adjudicate these cases before trial. In Globe Newspaper Co. v. Clerk of Suffolk County Superior Court, the Coutt, in considering “good cause” on a motion to lift impoundment of defendants’ identities in civil cases based on clergy sexual abuse, accepted as true that “‘in all five of the impounded cases, neither a judge nor a jury made any findings as to whether any of the defendant clergyman in fact did or did not sexually abuse the plaintiff children as alleged. Nor did any of the clergymen make any admission of responsibility in any court record in these cases.” Globe Newspaper Co. v. Clerk of Suffolk County Superior Court, 2002 Mass. Super. LEXIS 6, *24; 14 Mass. L. Rep. 315 (2002)(Gants, J.). Those cases were resolved through a stipulation of dismissal: “Therefore, in all five of these cases there are allegations of sexual abuse in the plaintiffs’ complaints but nothing that allows any impartial observer to determine the merits of those allegations.” Jd. Nonetheless, in those sexual abuse cases, the Court found that no interest, including the Defendants’ privacy rights, outweighed -7- “the common law and constitutional presumption of public access to court records,” and therefore the Court lifted the impoundment orders to make the Defendants’ names public. Jd., 2002 Mass. Super. LEXIS 6, *28; see also Globe Newspaper Co. v. Clerk of Middlesex County Superior Court, 2002 Mass. Super. LEXIS 67, *5; 14 Mass. L. Rep. 412 (2002)(Lauriat, J.). In these analogous cases, similar to the sexual abuse cases in Globe Newspaper Co. v. Clerk of Suffolk County Superior Court, no findings of fact were made. The Court in these cases did, however, rule upon Defendants’ dispositive motions, and upheld Plaintiffs’ intentional tort claims based on childhood sexual abuse. In this matter, the Court should likewise find that Defendants’ privacy rights are outweighed by “the common law and constitutional presumption of public access to court records,” and deny Defendants’ Motion To Impound. C. PLAINTIFFS’ CHILDHOOD SEXUAL ABUSE CLAIMS AND THE PUBLIC RECORDS OF THESE CIVIL ACTIONS ARE NOT PRIVATE MATTERS. The allegations against Defendants contained in Plaintiffs’ complaints in the above- captioned civil actions, as described in Plaintiffs’ sworn testimony, are based on childhood sexual abuse; serious claims of intentional torts which have many of the elements of conduct considered criminal and which is usually of significant public concern. (See Pl. Margaret Cremens-Smith’s Ans. To Defs.’ 1st Set Of Interrogs. To Margaret Cremens-Smith, Garabedian Afft., Ex. 12, at Ans. 5; Pl. Elizabethann Parks’s Ans. To Def. John Lakin’s 1st Set Of Interrogs. To Elizabethann Parks, Garabedian Afft., Ex. 13, at Ans. 7; Margaret Cremens-Smith Dep. [7/8/16], Garabedian Afft., Ex. 10, at 75:5-24, 82:22-83:7, 83:12-16, 85:4-12, 90:8-16, 98:24-101:11, 102:5-13; Elizabethan Parks Dep. [8/5/16], Garabedian Afft., Ex. 11, at 19:2-21:4, 35:12-36:21.) In analyzing the motion to lift the impoundment orders protecting the civil defendants in Globe Newspaper Co. v. Clerk of Suffolk County Superior Court, the Court noted that defendants in criminal cases “are virtually never permitted to proceed with a pseudonym, even though their -8- reputations, too, may be devastated by the indictment regardless of the verdict.” Globe Newspaper Co. v. Clerk of Suffolk County Superior Court, 2002 Mass. Super. LEXIS 6, *27. In the above-captioned civil actions, there is evidence that at least some of the alleged childhood sexual abuse could have taken place after the Defendants’ 18th birthday. Plaintiffs testified that some of the alleged sexual abuse occurred in “approximately 1978.” (See Pl. Margaret Cremens-Smith’s Ans. To Defs.’ 1st Set Of Interrogs. To Margaret Cremens-Smith, Garabedian Afft., Ex. 12, at Ans. 5; Pl. Elizabethann Parks’s Ans. To Def. John Lakin’s 1st Set Of Interrogs. To Elizabethann Parks, Garabedian Aff’t., Ex. 13, at Ans. 7; Margaret Cremens-Smith Dep. [7/8/16], Garabedian Afft., Ex. 10, at 102:5-13; Elizabethann Parks Dep. [8/5/16], Garabedian Afft., Ex. 11, at 35:12-36:21.) Defendants turned 18 in November, 1978, and were therefore over the age of 18 for some of 1978. (See John Lakin Dep. [10/27/16], Garabedian Aff't., Ex. 14, at 8:10-8:13.) P Moreover, older juveniles accused of serious sexual crimes against children can be indicted and prosecuted in the same manner as adult criminal defendants. See G.L. c. 119, § 54; see Commonwealth v. Clint C., 430 Mass. 219, 226 (1999); Commonwealth v. Todd, 87 Mass. App. Ct. 780, 785 (2015). The records from these court proceedings are open to the public “in the same manner and to the same extent as adult criminal court records.” G.L. c. 119, § 60A. The policy decision to treat older juveniles accused of serious sexual crimes against children as adults and to keep records of their court proceedings public indicates the significant public interest in protecting children from sexual abuse. See Sliney v. Previte, 473 Mass. 283, 292 (2015). CONCLUSION For the reasons set forth above, and for the reasons set forth in Plaintiffs’ Opposition To Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion -9- and those stated by Plaintiffs’ Counsel at the hearing on April 18, 2018, the Court should deny Defendants’ Motion To Seal And/Or Impound Case Caption, Docket, Record, And Instant Motion. Respectfully submitted, By Attorneys for Plaintiffs Margaret Cremens- Smith and Elizabethann Parks, thee Mitchell Garabedian, BBO #184760 mgarabedian@garabedianlaw.com William H. Gordon, BBO #545378 wgordon@garabedianlaw.com LAW OFFICES OF MITCHELL GARABEDIAN 100 State Street, 6th Floor Boston, MA 02109 (617) 523-6250 CERTIFICATE OF SERVICE I, Mitchell Garabedian, Plaintiffs’ Attorney, hereby certify that on April 30, 2018, a true copy of the above document was served upon Christopher J. Sullivan, Esq. and Zachary H. Hammond, Esq., Attorneys for Defendants John Lakin and Kenneth Lakin, Sullivan & Associates, LLC, 500 West Cummings Park, Suite 4700, Woburn, MA 01801, via hand delivery. Mob fe Mitchell GarabedYan, BBO #184760 mgarabedian@garabedianlaw.com LAW OFFICES OF MITCHELL GARABEDIAN 100 State Street, 6th Floor Boston, MA 02109 (617) 523-6250 -10-