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Wade v. Touchdown Realty Group, LLC

United States District Court, D. Massachusetts

January 26, 2018

GREGG WADE and KARIN WADE, Plaintiffs,
v.
TOUCHDOWN REALTY GROUP, LLC and TOM CLAYTON, Defendants.

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS' MOTION FOR PROTECTIVE ORDER

          JUDITH GAIL DEIN, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This 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.

         II. STATEMENT OF FACTS

         The 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.

         Before 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.

         The Wades brought suit against Touchdown and Mr. Clayton based on Mr. Schadler's findings.[1] 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 as follows:

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 Dennis Schadler.
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.

         Karin Wade Aff. (Docket No. 24-2) ¶¶ 4-7.

         The 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 motion.

         Types of Documents ...


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