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Murphy v. Harmatz

United States District Court, D. Massachusetts

December 5, 2016

PATRICIA MURPHY, et al. Plaintiffs
v.
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

         I. Introduction

         Plaintiffs 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.

         Presently 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.[1]

         II. Relevant Procedural Background

         Plaintiffs 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 ServiceNet.

         Plaintiffs' 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).

         III. Discussion

         Plaintiffs 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 be denied.

         1. Plaintiffs' document production requests did not describe documents evidencing communications between counsel for Ms. Harmatz and counsel for ServiceNet with reasonable particularity.

         Federal 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).

         Discovery 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 happen here.

         While 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).

         Because 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 ...


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