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Vantage Travel Service, Inc. v. Babine

Superior Court of Massachusetts, Suffolk

September 5, 2018

VANTAGE TRAVEL SERVICE, INC. et al.
v.
Meredith BABINE

          DECISION AND ORDER REGARDING DEFENDANT’S EMERGENCY MOTION TO EXTEND DEADLINE FOR TAKING DEPOSITION (DOCKET NO. 23.0)

          Brian A. Davis, Associate Justice of the Superior Court

          This is an action in which plaintiff Vantage Travel Service, Inc. and its founder and CEO, plaintiff Henry R. Lewis (collectively "Plaintiffs"), seek injunctive relief based on defendant Meredith Babine’s ("Ms. Babine") allegedly unlawful retention, use, and potential disclosure of certain confidential information belonging to Plaintiffs. The Court has issued at least two prior injunctive and/or discovery orders in this case; the first on July 18, 2018 (the "July 18 Order"), and the second on August 1, 2018 (the "August 1 Order"). Familiarity with those prior orders is presumed.

         The Court’s August 1 Order addressed Plaintiffs’ request for expedited discovery and included a directive that Ms. Babine "appear for a deposition of up to three (3) hours in length by Plaintiffs on a mutually-agreeable date within thirty (30) days of the date of this Order ..." August 1 Order at 2. However, given Ms. Babine’s claim that she currently "suffers from a number of acute health conditions that make it impossible for her to meaningfully participate in a deposition at this time," the Court simultaneously invited Ms. Babine. if warranted, to,

file a motion seeking to extend [the deposition] deadline for health reasons, which motion shall be accompanied by a supporting affidavit from a qualified medical provider who is personally familiar with Ms. Babine’s current condition. The affidavit also shall describe the conditions and timetable under which the medical provider reasonably believes Ms. Babine will be capable of being deposed by Plaintiffs.

Id. at 2-3.

         Ms. Babine has responded to the invitation contained in the Court’s August 1 Order by filing, on August 24, 2018, an emergency motion to extend the deadline for taking her deposition until January 31, 2019 (the "Emergency Motion," Docket Entry No. 23.0). Her Emergency Motion is accompanied by the affidavit of a clinical psychiatrist (the "Psychiatrist") who confirms that he personally has treated Ms. Babine and that he is familiar with her current condition. In brief, the Psychiatrist supports Ms. Babine’s claim that she is not presently capable of being deposed by Plaintiffs.[1] He also states that he intends to continue to treat Ms. Babine, and that he will provide a reassessment of Ms. Sabine’s condition in 120 days. The Psychiatrist does not, however, represent that Ms. Babine will be capable of being deposed in 120 days, nor does he describe the conditions under which he reasonably believes that Ms. Babine could be deposed by Plaintiffs.

         Plaintiffs have filed a limited opposition to Ms. Babine’s Emergency Motion, arguing that a prolonged 120-day stay of Ms. Babine’s deposition may be prejudicial to their case and is not called for at this time. They urge the Court, instead, to extend the deadline for Ms. Babine’s deposition by no more than 30 days, subject to her right to seek a further extension, if necessary. As grounds for their opposition, Plaintiffs cite, among other things, Ms. Babine’s refusal to answer certain written discovery requests that the Court granted Plaintiffs leave to serve on Ms. Babine in its August 1 Order. While Plaintiffs complain about Ms. Babine’s written discovery responses, however, they have not filed a motion to compel with the Court.

          The Court has reviewed the parties’ submissions in support of Ms. Babine’s Emergency Motion.[2] The Court concludes, in its discretion, that a result somewhere in the middle is warranted. Accordingly, Defendant’s Emergency Motion is ALLOWED IN PART. IT IS HEREBY ORDERED that:

         1. Ms. Babine shall appear for a deposition of up to three (3) hours in length by Plaintiffs on a mutually-agreeable date on or before November 30, 2018, provided, however, that Ms. Babine may file, on or before November 7, 2018, a motion seeking to further extend this deadline for health reasons, which motion shall be accompanied by a supporting affidavit from a qualified medical provider who is personally familiar with Ms. Babine’s current condition. The affidavit also shall describe the conditions and timetable under which the medical provider reasonably believes Ms. Babine will be capable of being deposed by Plaintiffs. Any affidavit that fails to fully comply with this Order may be disregarded by the Court; and

         2. The parties shall appear for a status conference on November 15, 2018, at 2:00 p.m.

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Notes:

[1] The Psychiatrist’s affidavit submitted by Ms. Babine has been impounded by the Court for good cause shown pursuant to Trial Court Rule VIII, Rule 8. The non-confidential portions of the affidavit that are referenced in this Decision and Order are included in the redacted version of Ms. Babine’s Emergency Motion.

[2] The Court issues this Decision and Order without a hearing because neither side has requested a hearing on Ms. Babine’s Emergency Motion. See Superior Court Rule 9A(c)(2) ("Failure to request a hearing shall be deemed a waiver of any right to a ...


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