United States District Court, D. Massachusetts
PATRICIA MURPHY, et al. Plaintiffs
ROBIN HARMATZ, et al. Defendants.
MEMORANDUM AND ORDER REGARDING PLAINTIFFS' MOTION
TO COMPEL PRODUCTION OF COMMUNICATIONS BETWEEN COUNSEL FOR
DEFENDANT ROBIN HARMATZ AND COUNSEL FOR DEFENDANT SERVICENET,
INC. (DOCKET NO. 158)
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE
Patricia and Kevin Murphy (“Plaintiffs”) bring
this action as guardians of Kathleen Murphy, an
intellectually disabled individual who qualifies for
educational, residential, and day services from the
Massachusetts Department of Developmental Services
(“DDS”). Ms. Murphy previously resided in a group
home owned and operated by defendant ServiceNet under a
contract with DDS. After Plaintiffs filed an amended
complaint, Ms. Murphy was transferred to a group home
operated directly by DDS. Plaintiffs' initial complaint
and their amended complaint asserted a broad range of claims
against DDS and DDS employees in their official capacities,
as well as against ServiceNet and a number of its employees,
and sought preliminary injunctive relief. On the
defendants' motions to dismiss, the presiding District
Judge dismissed all but the following claims: a portion of
Count IV, pled under 42 U.S.C. § 1983 against defendant
Robin Harmatz in her individual capacity, alleging a
violation of the Fourteenth Amendment; Count VIII, alleging a
violation of the Massachusetts Civil Rights Act against Ms.
Harmatz; Count IX, alleging intentional infliction of
emotional distress against Ms. Harmatz; and so much of Count
X as alleged negligent infliction of emotional distress
against ServiceNet. Plaintiffs' remaining claims are
limited to seeking recovery for allegedly inadequate care in
a group home or homes operated by ServiceNet where Ms. Murphy
resided, and for Ms. Harmatz' alleged failure to address
deficiencies in that care and her alleged role in causing
emotional distress to Ms. Murphy.
before the court is Plaintiff's Motion to Compel
Production of Communications Between Counsel for Defendant
Robin Harmatz and Counsel for Defendant ServiceNet
(“Motion to Compel”). On October 18, 2016, the
court heard argument from the parties on the Motion to
Compel. For the reasons set forth below, Plaintiff's
Motion is DENIED.
Relevant Procedural Background
filed their complaint on November 8, 2013 accompanied by a
motion for preliminary injunctive relief (Dkt. Nos. 1-3). The
defendants were served on November 15, 2013 (Dkt. Nos. 9-21).
On November 21, 2013, the defendants employed by DDS filed
their opposition to Plaintiffs' motion for preliminary
injunctive relief (Dkt. Nos. 23-24), which was supported by
affidavits (filed under seal) signed by Robin Harmatz, Maura
Squires, and Janet Cremins. Ms. Squires and Ms. Cremins were
ServiceNet employees (Dkt. No. 175). The court heard argument
on and summarily denied Plaintiffs' request for
preliminary injunctive relief on November 21, 2013 (Dkt. No.
26). Thereafter, discovery commenced. On July 24, 2015,
plaintiff Patricia Murphy served her initial and separate
requests for production of documents on Ms. Harmatz and
Motion to Compel was filed on September 8, 2016 (Dkt. No.
158). Plaintiffs seek to compel the production of “all
communications, including electronic communications, between
counsel for defendant Robin Harmatz . . . and counsel for
defendant ServiceNet, Inc” (id. at 1). It
appears that Plaintiffs are particularly interested in
communications among opposing counsel from around the time
that the defendants filed their opposition to, and the court
denied, Plaintiffs' motion for preliminary injunctive
relief (id. at 2).
contend that the “communications” whose
production they seek are “responsive to existing
document requests” (id. at 3). They further
contend that the communications at issue are discoverable
because such communications are relevant “to whether
officials of [the] Commonwealth's executive branch,
including Ms. Harmatz, have been engaged in a collusive
relationship with corporate care providers such as
ServiceNet” (id. at 6). Finally, Plaintiffs
argue that there is no basis for Ms. Harmatz and ServiceNet
to claim that communications between their attorneys are
privileged or otherwise confidential and protected from
disclosure (id. at 3-6). Because the court disagrees
with these contentions, Plaintiffs' Motion to Compel will
Plaintiffs' document production requests did not
describe documents evidencing communications between
counsel for Ms. Harmatz and counsel for ServiceNet with
Rule of Civil Procedure 34(b)(1)(A) provides that document
production requests “must describe with reasonable
particularity each item or category of items to be
inspected[.]” Plaintiffs rely on their Request No. 4 to
Ms. Harmatz, which sought the production of “[a]ny and
all electronic, written or paper correspondence, whether you
were the sender or recipient, in your possession, custody or
control relative to [Ms.] Murphy from June 1, 2008, to
present, ” and their request in the same language
directed to ServiceNet (Dkt. No. 158 at 3 n.3).
of communications among opposing counsel, when counsel
engaged in those communications for purposes of preparing and
mounting a defense to a pending lawsuit, is disfavored and
calls for special scrutiny. Cf. D.O.T. Connectors, Inc.
v. J.B. Nottingham & Co., Inc., No. 4:99CV311-WS,
2001 WL 34104929, at *1 (N.D. Fla. Jan. 22, 2001) (denying
motion to compel deposition of opposing party's
attorney). Discovery requests of this kind
“'disrupt the adversarial system . . . add to
the already burdensome time and costs of litigation. . .
[and] detract from the quality of client representation.
Counsel should be free to devote his or her time and efforts
to preparing the client's case without fear of being
interrogated by his or her opponent.”' Id.
(quoting Shelton v. Am. Motors Corp., 805 F.2d 1323,
1327 (8th Cir. 1986)). It follows that demands for the
discovery of communications exchanged among counsel for the
opposing parties in pending litigation should be stated with
particularity so that the precise nature of the disfavored
request is readily apparent and opposing parties are
immediately aware of what is being requested. That did not
it is true that documents in the possession of a party's
attorney generally are within the custody, possession or
control of the party, see, e.g., Axler v. Sci. Ecology
Grp., Inc., 196 F.R.D. 201, 212 (D. Mass. 2000), it does
not follow that Ms. Harmatz or ServiceNet
could reasonably be described as the “sender or
receiver” of communications exchanged between their
attorneys, or that such documents could reasonably be
described as “relative to Ms. Murphy.” If
discovery of documents evidencing communications exchanged
between counsel for the codefendants was Plaintiffs'
goal, Plaintiffs could easily have described those documents
in unambiguous terms. They failed to do so. The vague and
general language in which Plaintiffs' requests are
couched cannot reasonably be understood to encompass requests
for documents evidencing communications between counsel.
Cf. Wells Real Estate Inv. Trust II, Inc. v. Chardon/Hato
Rey P'ship, S.E., 615 F.3d 45, 59 n.15 (1st Cir.
2010) (general request for documents related to fuel spill
could not reasonably be understood as request for documents
related to insurance claim).
Plaintiffs' document production requests did not describe
documents evidencing communications exchanged between counsel
for the co-defendants with reasonable particularity as the
documents being sought in discovery, Plaintiffs have ...