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COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, ss : SUPERIOR COURT
CIVIL ACTION NO. 17-899
H1 LINCOLN, INC, d/b/a MAJESTIC
HONDA,
PDEN_COUNTY
Plaintiff, HAM
SUPERIOR COURT
FILED
ve
SOUTH WASHINGTON STREET, LLC, JUL 19 208
AND 849 SOUTH WASHINGTON Beckie
STREET, LLC, CLERK OF CBURTS
Defendants.
DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL
Defendants South Washington Street LLC and 849 South Washington Street LLC
(collectively “Defendants”) oppose Plaintiff H1 Lincoln, Inc. d/b/a Majestic Honda’s
(“Plaintiff”) Motion to Compel Discovery.
INTRODUCTION
This is an action filed by the Plaintiff challenging Defendants? withholding of consent to
a proposed site construction plan for a car dealership and subsequent termination of a lease (the
"Lease") for property located at 849 and 865 South Washington Street, North Attleboro,
Massachusetts (the "Property"). To justify the withholding of consent, Defendants’ intend to
rely upon an opinion from and consultation with a lawyer, David Manoogian, Esq.
(“Manoogian”). Defendants acknowledge that by relying upon the opinions and
communications with their counsel the advice is “at issue” in the case and have disclosed
these communications without objection. Unsatisfied with Defendants’ disclosure, the
{K0740899.1) 1me
Plaintiff filed this Motion claiming that by relying upon the communications and opinions of
counsel to withhold consent, Defendants waived the attorney client privilege on all
communications with their counsel (regardless of subject matter) or in the alternative that the
Defendants failed to preserve the privilege by formally asserting an objection to the request
for production.
The Motion should be denied for several reasons. First, as a matter of law, and by
definition, an at issue waiver is limited to only those communications at issue and, contrary to
the Plaintiff's contentions, does not operate as a blanket waiver of all communications
between the lawyer and client. Second, Defendants timely objected to the production of
attorney client communications in response to the request for production and, therefore, did
not waive the privilege by failing to assert it. Third, as a matter of procedure, the Motion
fails to comply with Superior Court Rule 9C(b). The Plaintiff failed to identify the text of the
specific request that it is seeking to compel and Defendants’ responses.
FACTUAL BACKGROUND
Al Dos Anjos (“Dos Anjos”), is the manager of Defendants. Manoogian is a lawyer who
has represented Defendants and their manager, Dos Anjos, in a “variety of matters, business, real
estate and personal,” including the negotiation and termination of a Lease for the Property
(David Manoogian Deposition Transcript (““Tr.”) at 8, a copy of the relevant pages of the
Transcript are attached as Exhibit A). Specifically, Manoogian testified that he was involved
with:
Negotiations and drafts [of the Lease] that were circulated between.
the parties. I may have talk to Mr. Pacella once or twice on it but J
believe everything went through Josh Teverow and then in turn
sent drafts to Mr. Pacella. I know Mr. Pacella’s wife was ill at the
time too. So I don’t know exactly how Attorney Pacella was
{K0740899.1} 2involved on behalf of Mr. Balise but J recall everything going
through Mr. Teverow.
(Manoogian Tr. at 18, 19).
The Lease negotiated by Manoogian included a provision that required permission of
Defendants for any proposed new construction or demolition of existing buildings at the
Property. Specifically, Section 2(a) of the Lease provides that:
If Tenant determines that either or both of the Existing Buildings
will need to be demolished in connection with Tenant’s planned
use of the Property or that any new buildings need to be
constructed (“New Buildings”) Tenant shall give Landlord written
notice of such determination within the Feasibility Period
(“Demolition/New Buildings Notice”)... Demolition/New
Buildings Notice shall include preliminary site plans and
elevations for Tenant’s proposed development of the Property,
which shall be in reasonable detail... Within fifteen (15) days after
Landlord’s receipt of the Demolition/New Building Notice
Landlord shall have the right to terminate this Lease by
written notice to Tenant if Landlord reasonably withholds
consent to such new construction in which event this Lease
shall terminate as of the date of the Landlord’s written notice and
the parts shall have no further obligation to one another except
those obligations that expressly survive termination hereunder
ee OK .
Notwithstanding the foregoing, Landlord‘acknowledges that
Tenant’s present intention it to demolish the 865 Building and the
849 Building and replace with a prototypical Honda dealership
facility. Tenant shall submit to Landlord during the Feasibility
Period a prototypical elevation showing the materials and general
architectural appearance of the Honda dealership facility and
reasonably detailed plans for Tenant’s proposed improvements
for review and approval of Landlord which such approval
shall not be unreasonably withheld.
On or about July 25, 2017, the Plaintiff issued a notice of its intent to demolish buildings,
and construct a “new larger building over the site.” With the notice, the Plaintiff included a site
plan and elevation (the “Site Plan”) for Defendants review and approval.
{K0740899.1} 3Upon receipt of the Site Plan, Defendants requested that Manoogian perform a review of
the Site Plan from a zoning and planning perspective to determine thé impact on the Property.
(Manoogian Tr. at 69, 70, 74). In particular, Manoogian testified as follows.
Q So what did Mr. Dos Anjos instruct you to convey to Mr.
Balise ?
MR. BRIANSKY: Objection.
A. by to convey it to Mr. Balise you’re asking me — so I’m
sure of your question you are you asking me what my client
instructed me to put in the termination notice?
Q. Yes
A. He had — early in the process he had concerns when he saw
the site plan as to the zoning issues. So he asked me to conduct a
review of the site plan from the zoning and planning standpoint,
and then over the course of a couple of days before the 9" I
reviewed the site plan and had discussions with him about my
opinions as to why I thought the site plan was inadequate and not
in his best interests to accept it.
* OR OK
Under the lease we get a site plan. We get that site plan and we
evaluate it. Under that site plan it did not show permitting two
separate lots. It clearly showed three parcels under not in current
ownership that was going to be permitted together.
(Manoogian Tr. at 69, 70, 74).
Manoogian acknowledged that:
{K0740899.1)
My client had not made a determination by the time until very late
in the process that he instructed me to terminate the deal based
upon the site plan.
OR
My client informed me very late in the process. I remember
drafting that [termination letter] probably at home to send out on
the 9", My client did not make a formal determination until
probably a day or so before the 9".
eK OKI sent [the termination letter] to my client for execution so it could
be properly served on the other side.
* RK
[The termination letter] was a product of my evaluation of the site
plan, advising my client and responding to his questions.
(Manoogian Tr. at 62, 63, 67, 68)
Manoogian and his client, Dos Anjos, confirmed to the Plaintiff that Defendants:
“[W]aived the privilege as to the matters as to what J informed him with respect to my advice on
the termination issue.” (Manoogian Tr. at 34).
PROCEDURAL BACKGROUND
On December 17, 2017, the Plaintiff filed this action, asserted claims for declaratory
judgment, injunctive relief, breach of contract, breach of the covenant of good faith and fair
dealing and violation of Chapter 93A By agreement the parties originally selected a June trial
date and then continued the trial to September 18, 2018.
On March 23, 2018, the Plaintiff served its request for production of documents (the
“Request”).
On May 16, 2018, the Defendants served their response to the Request (the “Responsc”).
(A copy of the Response is attached as Exhibit B). The Response provided “General
Objections” including that
Defendants object to the document request to the extent that they
call for the disclosure of information protected by the attorney-
client privilege or work product doctrine.
Defendants object to the document requests to the extent they seek
privileged material or information.
[t]hese responses are based on the information available at the
present time from the files of the defendants in their possession
and control and the defendants are currently continuing to review
{K0740899.1) 5its [sic] files and reserve the right to supplement, amend or correct
these responses in the even that future discovery reveals facts that
would justify supplementation, correction amendment.
(Exhibit B emphasis added).
After the parties filed and the Court granted a confidentiality order in or around May 18,
2018, both the Defendants and the Plaintiff exchanged documents and then completed
depositions of fact witnesses through June 2018.
By email dated June 1, 2018, the Plaintiff requested “[a] copy of the Purchase and Sale
Agreement between your client and the previous owners of the Cash land,” “ a copy of the email
from Mr. Manoogian to Lisa Dos Anjos Parisault on or about August 9, 2017,” and “[ajll
correspondence by David Manoogian related to this case...”! (A copy of this email is attached
as Exhibit C).
On or about June 5, 2018, the Court (Goodwin, J.) held a pretrial conference, required a
motion to bifurcate trial be filed and then transferred the case to this session for another pretrial
conference which was scheduled on July 2, 2018.
By email dated June 5, 2018, the Plaintiff produced additional (previously withheld
documents) and represented that
We have not received a response to our request for Al Dos Anjos’
purchase and sale agreement for the Cash land, a copy of the email
sent by Mr. Manoogian to Lisa Dos Anjos Parisault..., and all
correspondence to, from and by Mr. Manoogian...
(A copy of this email is attached as Exhibit D).
By email dated June 18, 2018, the Plaintiff represented that the Defendants produce
} Although not directly relevant to this Motion, the Defendants continued to request documents
that had not been produced by the Plaintiff. The Plaintiff produced limited documents including
a “supplemental production” on June 7, 2018.
4K0740899.1} 6Al Dos Anjos’s purchase and sale agreement for the Cash land, the
email sent by Mr. Manoogian to Lisa Dos Anjos Parisault on or
about August 9, 2017; and [A]}I correspondence and documents to,
from and by Mr. Manoogian relating to the lease and negotiations.
(A copy of this email is attached as Exhibit E).
On June 19, 2018, the Defendants confirmed that there was no purchase and sale
agreement, agreed to and did produce the email from Manoogian to Lisa Dos Anjos Parisault,
and refused to produce the documents to, from and by Manoogian on the basis of attorney client
privilege. (A copy of this email is attached as Exhibit F).
ARGUMENT
I. THE NARROW AT ISSUE WAIVER DOES NOT REQUIRE THE
PRODUCTION OF MANOOGIAN’S ENTIRE FILE.
Massachusetts recognizes the “at issue waiver.” See McCarthy v. Slade Associates, Inc.,
463 Mass 181, 191-192 (2012). The “at issue waiver” requires disclosure of an otherwise
privileged communication where it has been injected into “certain claims or defenses.” See Clair
v Clair, 464 Mass. 205, 219 (2013). “By definition, [the at issue waiver] is a limited waiver of
the privilege with respect to what has been put ‘at issue.’” Global Investors Agent Corp. v.
National Fire Insurance Co. of Hartford, 76 Mass. App. Ct. 812, 818 (2010); see also Darius v.
Boston, 433 Mass. 274 (2001).
Here, Defendants have acknowledged that by relying upon communications with and
opinions of counsel to justify the termination of the Lease, Defendants injected these
communications into the litigation. Defendants actively disclosed these communications through
testimony and produced all of the emails in its possession.” Specifically, Manoogian disclosed
2 After receiving the Motion, Attorney Manoogian again searched his electronic files and
found a few additional potentially responsive emails, These emails have been produced.
{K0740899.1} 7the substance of his opinions that he provided to Defendants regarding the Site Plans submitted
by the Plaintiff, the basis for his opinion, the justification for termination, and the drafting and
issuing of the letter of termination. The Plaintiff glosses over these disclosures and the explicit
and substantive testimony provided by Manoogian and instead demands - without any authority -
that Manoogian produce his entire file. including “pre-lease negotiations, drafting of the lease
and the post-lease interactions of the parties.” Motion at 7. But the at issue waiver is limited to
only those communications actually at issue — here, the communications solely related to
withholding consent to the construction. See Darious v. Boston, 443, Mass. 274, 284 (2001)
(recognizing at issue waiver which by definition “is a limited waiver of the privilege with respect
to what has been put ‘at issue.””). All of these communications have been provided. As a result,
the Motion should be denied.
I DEFENDANTS PROPERLY AND TIMELY ASSERTED PRIVILEGE TO
OTHER COMMUNICATIONS.
The Plaintiff attempts to justify the production of Manoogian’s entire file by claiming
that the Defendants never “expressly invoked the attomey client privilege with regard to the
Plaintiff's Document Request.” Motion at 8. This representation is simply false. Absent from
the Plaintiff's Motion (and in violation of Superior Court Rule 9C (b)) are the Responses. The
Responses expressly object to the production based upon attorney-client privilege. See General
Objections? at 1 (“Defendants object to the document requests to the extent they call for
information protected by the attorney-client privilege and/or work product doctrine.”).
3 General Objections are permissible under Superior Court Rule 30A because these
responses were served before production was complete. (“Where a party serves a response to
request for production of documents and things before production is completed the response may
include general objections.”).
{K0740899.1} 8Likewise, the Plaintiff cannot claim that the failure to either respond to email requests for
supplemental documents or the production of a privilege log justifies a waiver of the attorney
client privilege. Neither the failure to timely object nor the failure to produce a privilege log are
automatic waivers of the privilege. See Applied Systems Inc. v. Northem Insurance Co of New
York 97 C 1565, 1997 WL 63935 *2 (N.D. Ill Oct. 7, 1997) (a waiver is a serious sanction to be
imposed in cases of “unjustified delay, inexcusable conduct bad faith or other flagrant
violations.”); In re Department of Justice Subpoenas to ABC, 263 F.R.D. 66 (D. Mass. 2009) (six
month delay in producing privilege log not a waiver of the privilege). Nowhere in Rule 26(b)(5)
is there a requirement that a privilege log be produced simultaneously with the production of
documents nor is there a deadline set forth for the production of such a log. See, ¢.g., Sawyer v.
Southwest Airlines, Nos. 01-2385-KHV, 01-2386-KHV, 2002 WL 31928442, *1 (D. Kan. Dec.
23, 2002) (no waiver even where defendant waited more than two months after it served
responses to requests for production to provide a meaningful privilege log); Per-America, Inc. v.
Sunham Home Fashions, LLC, No. 03 Civ. 1377 (JFK)(RLE), 2008 WL 394787, at *3 (S.D.
N.Y. Feb. 13, 2008) (fact that defendant's privilege log was produced late does not, without
more, warrant waiver of attorney-client privilege); White v. Graceland College Center for Prof
Dev. & Lifelong Learning, Inc., No. 07-2319-CM, 2008 WL 3271924, at *12 (D, Kan. Aug. 7,
2008) (“‘waiver too harsh a sanction for untimely submission of the privilege log in most cases
where the delay is not excessive or unreasonable”); First Savings Bank v. First Bank System
Inc, 902 F.Supp. 1356, 1361 (D. Kan. 1995)(taking into account an expedited discovery
schedule defendant’s failure to maintain an adequate privilege log did result in a waiver).
‘
Wl. THE PLAINTIFF FAILED TO COMPLY WITH SUPERIOR COURT RULE
9C(B).
Superior Court Rule 9C(b) requires that:
{K0740899.1) 9All motions arising out of a party’s. ...response to or asserted
failure to comply with a request for production....shall set forth
separately and in the following order (1) the text of the
interrogatory or request, (2) the opponents response and (3) an
argument.
Here, the Plaintiff failed to identify in its Motion any specific formal requests that Defendants
failed to respond to nor did it provide any of Defendants’ responses to the formal requests. The
failure to comply with Superior Court Rule 9C(B) alone justifies the denial of the Motion.
CONCLUSION
For the above reasons, Defendants’ request that the Court deny the Motion, award them
attorney’s fees and costs and such other and further relief that is just and appropriate.
SOUTH WASHINGTON STREET LLC and
849 SOUTH WASHINGTON STREET LLC
By their attorneys
AW
RICHARD E. BRIANSKY, Esquire
McCarter & English, LLP
265 Franklin Street
Boston, MA 02110
Phone: (617)449-6568
BBO No. 632709
E-mail: rbriansky@mccarter.com
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the above document
was served upon jtz attorney of record for each other
party by (handy (il) Iwi
{K0740899.1} 10
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COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss : SUPERIOR COURT CIVIL ACTION NO. 17-899 H1 LINCOLN, INC, d/b/a MAJESTIC HONDA, PDEN_COUNTY Plaintiff, HAM SUPERIOR COURT FILED ve SOUTH WASHINGTON STREET, LLC, JUL 19 208 AND 849 SOUTH WASHINGTON Beckie STREET, LLC, CLERK OF CBURTS Defendants. DEFENDANTS’ OPPOSITION TO MOTION TO COMPEL Defendants South Washington Street LLC and 849 South Washington Street LLC (collectively “Defendants”) oppose Plaintiff H1 Lincoln, Inc. d/b/a Majestic Honda’s (“Plaintiff”) Motion to Compel Discovery. INTRODUCTION This is an action filed by the Plaintiff challenging Defendants? withholding of consent to a proposed site construction plan for a car dealership and subsequent termination of a lease (the "Lease") for property located at 849 and 865 South Washington Street, North Attleboro, Massachusetts (the "Property"). To justify the withholding of consent, Defendants’ intend to rely upon an opinion from and consultation with a lawyer, David Manoogian, Esq. (“Manoogian”). Defendants acknowledge that by relying upon the opinions and communications with their counsel the advice is “at issue” in the case and have disclosed these communications without objection. Unsatisfied with Defendants’ disclosure, the {K0740899.1) 1me Plaintiff filed this Motion claiming that by relying upon the communications and opinions of counsel to withhold consent, Defendants waived the attorney client privilege on all communications with their counsel (regardless of subject matter) or in the alternative that the Defendants failed to preserve the privilege by formally asserting an objection to the request for production. The Motion should be denied for several reasons. First, as a matter of law, and by definition, an at issue waiver is limited to only those communications at issue and, contrary to the Plaintiff's contentions, does not operate as a blanket waiver of all communications between the lawyer and client. Second, Defendants timely objected to the production of attorney client communications in response to the request for production and, therefore, did not waive the privilege by failing to assert it. Third, as a matter of procedure, the Motion fails to comply with Superior Court Rule 9C(b). The Plaintiff failed to identify the text of the specific request that it is seeking to compel and Defendants’ responses. FACTUAL BACKGROUND Al Dos Anjos (“Dos Anjos”), is the manager of Defendants. Manoogian is a lawyer who has represented Defendants and their manager, Dos Anjos, in a “variety of matters, business, real estate and personal,” including the negotiation and termination of a Lease for the Property (David Manoogian Deposition Transcript (““Tr.”) at 8, a copy of the relevant pages of the Transcript are attached as Exhibit A). Specifically, Manoogian testified that he was involved with: Negotiations and drafts [of the Lease] that were circulated between. the parties. I may have talk to Mr. Pacella once or twice on it but J believe everything went through Josh Teverow and then in turn sent drafts to Mr. Pacella. I know Mr. Pacella’s wife was ill at the time too. So I don’t know exactly how Attorney Pacella was {K0740899.1} 2involved on behalf of Mr. Balise but J recall everything going through Mr. Teverow. (Manoogian Tr. at 18, 19). The Lease negotiated by Manoogian included a provision that required permission of Defendants for any proposed new construction or demolition of existing buildings at the Property. Specifically, Section 2(a) of the Lease provides that: If Tenant determines that either or both of the Existing Buildings will need to be demolished in connection with Tenant’s planned use of the Property or that any new buildings need to be constructed (“New Buildings”) Tenant shall give Landlord written notice of such determination within the Feasibility Period (“Demolition/New Buildings Notice”)... Demolition/New Buildings Notice shall include preliminary site plans and elevations for Tenant’s proposed development of the Property, which shall be in reasonable detail... Within fifteen (15) days after Landlord’s receipt of the Demolition/New Building Notice Landlord shall have the right to terminate this Lease by written notice to Tenant if Landlord reasonably withholds consent to such new construction in which event this Lease shall terminate as of the date of the Landlord’s written notice and the parts shall have no further obligation to one another except those obligations that expressly survive termination hereunder ee OK . Notwithstanding the foregoing, Landlord‘acknowledges that Tenant’s present intention it to demolish the 865 Building and the 849 Building and replace with a prototypical Honda dealership facility. Tenant shall submit to Landlord during the Feasibility Period a prototypical elevation showing the materials and general architectural appearance of the Honda dealership facility and reasonably detailed plans for Tenant’s proposed improvements for review and approval of Landlord which such approval shall not be unreasonably withheld. On or about July 25, 2017, the Plaintiff issued a notice of its intent to demolish buildings, and construct a “new larger building over the site.” With the notice, the Plaintiff included a site plan and elevation (the “Site Plan”) for Defendants review and approval. {K0740899.1} 3Upon receipt of the Site Plan, Defendants requested that Manoogian perform a review of the Site Plan from a zoning and planning perspective to determine thé impact on the Property. (Manoogian Tr. at 69, 70, 74). In particular, Manoogian testified as follows. Q So what did Mr. Dos Anjos instruct you to convey to Mr. Balise ? MR. BRIANSKY: Objection. A. by to convey it to Mr. Balise you’re asking me — so I’m sure of your question you are you asking me what my client instructed me to put in the termination notice? Q. Yes A. He had — early in the process he had concerns when he saw the site plan as to the zoning issues. So he asked me to conduct a review of the site plan from the zoning and planning standpoint, and then over the course of a couple of days before the 9" I reviewed the site plan and had discussions with him about my opinions as to why I thought the site plan was inadequate and not in his best interests to accept it. * OR OK Under the lease we get a site plan. We get that site plan and we evaluate it. Under that site plan it did not show permitting two separate lots. It clearly showed three parcels under not in current ownership that was going to be permitted together. (Manoogian Tr. at 69, 70, 74). Manoogian acknowledged that: {K0740899.1) My client had not made a determination by the time until very late in the process that he instructed me to terminate the deal based upon the site plan. OR My client informed me very late in the process. I remember drafting that [termination letter] probably at home to send out on the 9", My client did not make a formal determination until probably a day or so before the 9". eK OKI sent [the termination letter] to my client for execution so it could be properly served on the other side. * RK [The termination letter] was a product of my evaluation of the site plan, advising my client and responding to his questions. (Manoogian Tr. at 62, 63, 67, 68) Manoogian and his client, Dos Anjos, confirmed to the Plaintiff that Defendants: “[W]aived the privilege as to the matters as to what J informed him with respect to my advice on the termination issue.” (Manoogian Tr. at 34). PROCEDURAL BACKGROUND On December 17, 2017, the Plaintiff filed this action, asserted claims for declaratory judgment, injunctive relief, breach of contract, breach of the covenant of good faith and fair dealing and violation of Chapter 93A By agreement the parties originally selected a June trial date and then continued the trial to September 18, 2018. On March 23, 2018, the Plaintiff served its request for production of documents (the “Request”). On May 16, 2018, the Defendants served their response to the Request (the “Responsc”). (A copy of the Response is attached as Exhibit B). The Response provided “General Objections” including that Defendants object to the document request to the extent that they call for the disclosure of information protected by the attorney- client privilege or work product doctrine. Defendants object to the document requests to the extent they seek privileged material or information. [t]hese responses are based on the information available at the present time from the files of the defendants in their possession and control and the defendants are currently continuing to review {K0740899.1) 5its [sic] files and reserve the right to supplement, amend or correct these responses in the even that future discovery reveals facts that would justify supplementation, correction amendment. (Exhibit B emphasis added). After the parties filed and the Court granted a confidentiality order in or around May 18, 2018, both the Defendants and the Plaintiff exchanged documents and then completed depositions of fact witnesses through June 2018. By email dated June 1, 2018, the Plaintiff requested “[a] copy of the Purchase and Sale Agreement between your client and the previous owners of the Cash land,” “ a copy of the email from Mr. Manoogian to Lisa Dos Anjos Parisault on or about August 9, 2017,” and “[ajll correspondence by David Manoogian related to this case...”! (A copy of this email is attached as Exhibit C). On or about June 5, 2018, the Court (Goodwin, J.) held a pretrial conference, required a motion to bifurcate trial be filed and then transferred the case to this session for another pretrial conference which was scheduled on July 2, 2018. By email dated June 5, 2018, the Plaintiff produced additional (previously withheld documents) and represented that We have not received a response to our request for Al Dos Anjos’ purchase and sale agreement for the Cash land, a copy of the email sent by Mr. Manoogian to Lisa Dos Anjos Parisault..., and all correspondence to, from and by Mr. Manoogian... (A copy of this email is attached as Exhibit D). By email dated June 18, 2018, the Plaintiff represented that the Defendants produce } Although not directly relevant to this Motion, the Defendants continued to request documents that had not been produced by the Plaintiff. The Plaintiff produced limited documents including a “supplemental production” on June 7, 2018. 4K0740899.1} 6Al Dos Anjos’s purchase and sale agreement for the Cash land, the email sent by Mr. Manoogian to Lisa Dos Anjos Parisault on or about August 9, 2017; and [A]}I correspondence and documents to, from and by Mr. Manoogian relating to the lease and negotiations. (A copy of this email is attached as Exhibit E). On June 19, 2018, the Defendants confirmed that there was no purchase and sale agreement, agreed to and did produce the email from Manoogian to Lisa Dos Anjos Parisault, and refused to produce the documents to, from and by Manoogian on the basis of attorney client privilege. (A copy of this email is attached as Exhibit F). ARGUMENT I. THE NARROW AT ISSUE WAIVER DOES NOT REQUIRE THE PRODUCTION OF MANOOGIAN’S ENTIRE FILE. Massachusetts recognizes the “at issue waiver.” See McCarthy v. Slade Associates, Inc., 463 Mass 181, 191-192 (2012). The “at issue waiver” requires disclosure of an otherwise privileged communication where it has been injected into “certain claims or defenses.” See Clair v Clair, 464 Mass. 205, 219 (2013). “By definition, [the at issue waiver] is a limited waiver of the privilege with respect to what has been put ‘at issue.’” Global Investors Agent Corp. v. National Fire Insurance Co. of Hartford, 76 Mass. App. Ct. 812, 818 (2010); see also Darius v. Boston, 433 Mass. 274 (2001). Here, Defendants have acknowledged that by relying upon communications with and opinions of counsel to justify the termination of the Lease, Defendants injected these communications into the litigation. Defendants actively disclosed these communications through testimony and produced all of the emails in its possession.” Specifically, Manoogian disclosed 2 After receiving the Motion, Attorney Manoogian again searched his electronic files and found a few additional potentially responsive emails, These emails have been produced. {K0740899.1} 7the substance of his opinions that he provided to Defendants regarding the Site Plans submitted by the Plaintiff, the basis for his opinion, the justification for termination, and the drafting and issuing of the letter of termination. The Plaintiff glosses over these disclosures and the explicit and substantive testimony provided by Manoogian and instead demands - without any authority - that Manoogian produce his entire file. including “pre-lease negotiations, drafting of the lease and the post-lease interactions of the parties.” Motion at 7. But the at issue waiver is limited to only those communications actually at issue — here, the communications solely related to withholding consent to the construction. See Darious v. Boston, 443, Mass. 274, 284 (2001) (recognizing at issue waiver which by definition “is a limited waiver of the privilege with respect to what has been put ‘at issue.””). All of these communications have been provided. As a result, the Motion should be denied. I DEFENDANTS PROPERLY AND TIMELY ASSERTED PRIVILEGE TO OTHER COMMUNICATIONS. The Plaintiff attempts to justify the production of Manoogian’s entire file by claiming that the Defendants never “expressly invoked the attomey client privilege with regard to the Plaintiff's Document Request.” Motion at 8. This representation is simply false. Absent from the Plaintiff's Motion (and in violation of Superior Court Rule 9C (b)) are the Responses. The Responses expressly object to the production based upon attorney-client privilege. See General Objections? at 1 (“Defendants object to the document requests to the extent they call for information protected by the attorney-client privilege and/or work product doctrine.”). 3 General Objections are permissible under Superior Court Rule 30A because these responses were served before production was complete. (“Where a party serves a response to request for production of documents and things before production is completed the response may include general objections.”). {K0740899.1} 8Likewise, the Plaintiff cannot claim that the failure to either respond to email requests for supplemental documents or the production of a privilege log justifies a waiver of the attorney client privilege. Neither the failure to timely object nor the failure to produce a privilege log are automatic waivers of the privilege. See Applied Systems Inc. v. Northem Insurance Co of New York 97 C 1565, 1997 WL 63935 *2 (N.D. Ill Oct. 7, 1997) (a waiver is a serious sanction to be imposed in cases of “unjustified delay, inexcusable conduct bad faith or other flagrant violations.”); In re Department of Justice Subpoenas to ABC, 263 F.R.D. 66 (D. Mass. 2009) (six month delay in producing privilege log not a waiver of the privilege). Nowhere in Rule 26(b)(5) is there a requirement that a privilege log be produced simultaneously with the production of documents nor is there a deadline set forth for the production of such a log. See, ¢.g., Sawyer v. Southwest Airlines, Nos. 01-2385-KHV, 01-2386-KHV, 2002 WL 31928442, *1 (D. Kan. Dec. 23, 2002) (no waiver even where defendant waited more than two months after it served responses to requests for production to provide a meaningful privilege log); Per-America, Inc. v. Sunham Home Fashions, LLC, No. 03 Civ. 1377 (JFK)(RLE), 2008 WL 394787, at *3 (S.D. N.Y. Feb. 13, 2008) (fact that defendant's privilege log was produced late does not, without more, warrant waiver of attorney-client privilege); White v. Graceland College Center for Prof Dev. & Lifelong Learning, Inc., No. 07-2319-CM, 2008 WL 3271924, at *12 (D, Kan. Aug. 7, 2008) (“‘waiver too harsh a sanction for untimely submission of the privilege log in most cases where the delay is not excessive or unreasonable”); First Savings Bank v. First Bank System Inc, 902 F.Supp. 1356, 1361 (D. Kan. 1995)(taking into account an expedited discovery schedule defendant’s failure to maintain an adequate privilege log did result in a waiver). ‘ Wl. THE PLAINTIFF FAILED TO COMPLY WITH SUPERIOR COURT RULE 9C(B). Superior Court Rule 9C(b) requires that: {K0740899.1) 9All motions arising out of a party’s. ...response to or asserted failure to comply with a request for production....shall set forth separately and in the following order (1) the text of the interrogatory or request, (2) the opponents response and (3) an argument. Here, the Plaintiff failed to identify in its Motion any specific formal requests that Defendants failed to respond to nor did it provide any of Defendants’ responses to the formal requests. The failure to comply with Superior Court Rule 9C(B) alone justifies the denial of the Motion. CONCLUSION For the above reasons, Defendants’ request that the Court deny the Motion, award them attorney’s fees and costs and such other and further relief that is just and appropriate. SOUTH WASHINGTON STREET LLC and 849 SOUTH WASHINGTON STREET LLC By their attorneys AW RICHARD E. BRIANSKY, Esquire McCarter & English, LLP 265 Franklin Street Boston, MA 02110 Phone: (617)449-6568 BBO No. 632709 E-mail: rbriansky@mccarter.com CERTIFICATE OF SERVICE Thereby certify that a true copy of the above document was served upon jtz attorney of record for each other party by (handy (il) Iwi {K0740899.1} 10