United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS'
MOTION FOR PROTECTIVE ORDER
GAIL DEIN, UNITED STATES MAGISTRATE JUDGE
matter is before the court on “Plaintiffs' Motion
for a Protective Order Pursuant to F.R.C.P. 26(b)(5) and
F.R.C.P. 26(c)(1)(A).” Docket No. 24. Therein,
plaintiffs contend that documents in the possession of their
witness, Dennis Schadler, are protected from discovery by
either the attorney-client privilege or the work product
doctrine. After careful consideration of the record and oral
arguments of counsel, the motion is ALLOWED on the grounds
that the material is protected by the work product doctrine.
STATEMENT OF FACTS
plaintiffs, Gregg and Karin Wade (the “Wades”),
purchased a home in Foxboro, Massachusetts from the
defendant, Touchdown Realty Group, LLC
(“Touchdown”). The defendant, Tom Clayton
(“Mr. Clayton”), is allegedly the “real
party in interest” of Touchdown. Am. Compl. (Docket No.
37) ¶ 3. The plaintiffs allege that Touchdown and Mr.
Clayton made material misrepresentations and otherwise
defrauded them in connection with the sale. In particular,
but without limitation, the Wades contend that
misrepresentations were made to them to the effect that the
house could be used as a three-bedroom home, and that a
downstairs room with an adjoining bathroom could be used by
the Wades' disabled daughter as a bedroom. They also
contend that the house had serious construction defects which
were not disclosed.
they learned of the alleged defects, the Wades had hired D
& D Home Improvements, Inc., and its principal, Dennis
Schadler (“Mr. Schadler”), to undertake a
bathroom and bedroom renovation. Schadler Depo. at 17. They
obtained his name through RCAP Solutions, a state-funded
agency that assists homeowners in paying for renovations
needed for persons with special needs. Id. During
the course of his work at the Wades' home, Mr. Schadler
determined that, in his opinion, construction work done by
Touchdown prior to the sale was defective. He was also of the
opinion that the electrical and plumbing work, and the use of
insulation and fire retardant materials, were not up to the
then current Massachusetts State Building Code.
Wades brought suit against Touchdown and Mr. Clayton based on
Mr. Schadler's findings. Mr. Schadler remained in close
contact with the Wades and advised them concerning the issues
in dispute in the litigation. Mrs. Wade served as a conduit
of information between plaintiffs' counsel, Robert
Meltzer, and Mr. Schadler. Mr. Schadler was never retained by
Attorney Meltzer. In her affidavit in support of the motion
for a protective order, Mrs. Wade described the relationship
4. Dennis Schadler has two roles. First, he is a contractor
who has been working on repairing the defects in our house.
These defects are the subject of this case. He is also
serving as a code consultant for my husband and I with
regards to the issues with the town of Foxboro. He will be
testifying at trial not only about what he saw, but what the
codes says about what he saw, and why it is important.
5. Dennis Schadler is part of our litigation team. Our lawyer
represents construction companies, and he speaks the same
language as Dennis Schadler, who is a contractor. When our
lawyer has been asking us questions relating to framing
issues for the litigation, which he has been doing in email,
I had been sending those questions and comments directly to
6. By doing that, I certainly wasn't
“waiving” an attorney/client privilege. What I
was doing was taking myself out as the middle person between
two people who understood a language and a process that is
new to me. I am from New Jersey and Michigan, and my primary
occupation consists of caring for a disabled child. I do not
understand Massachusetts building code or what it means.
Thus, Dennis was translating for me what my lawyer was
asking, and he was translating for my lawyer what I was
saying and seeing.
7. All of the emails in question were written after I hired a
lawyer for the purpose of sorting out what our legal rights
were, and they reflect what our lawyer was thinking, not the
facts of the case that existed before we hired a lawyer.
Wade Aff. (Docket No. 24-2) ¶¶ 4-7.
defendants took the deposition of Mr. Schadler as a fact
witness and as the keeper of the records of D & D Home
Improvements, Inc. Mr. Schadler arrived at the deposition
with documents that had never been seen by plaintiffs'
counsel. Counsel reviewed the documents and identified those
for which the plaintiffs claimed a privilege. They were
segregated and put in a sealed envelope. They have been
provided to the court for an in camera review, and
these are the documents that are at issue in this pending
of Documents ...