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McLaughlin v. Rubenstein

Superior Court of Massachusetts, Suffolk, Business Litigation Session

September 13, 2018

Daniel MCLAUGHLIN et al.
v.
Attorney Alan RUBENSTEIN et al.

          DECISION AND ORDER REGARDING DEFENDANT’S MOTION TO COMPEL (DOCKET ENTRY NO. 21.0) AND PLAINTIFFS’ CROSS MOTION TO COMPEL (DOCKET ENTRY NO. 22.0)

          Brian A. Davis, Associate Justice

          In this action, plaintiffs Daniel McLaughlin and Rachel McLaughlin ("Plaintiffs") allege that their former attorneys, defendant Alan Rubenstein ("Attorney Rubenstein’) and the law firm of Rackemann, Sawyer & Brewster, P.C. ("RSB" or, with Attorney Rubenstein, "Defendants"), committed legal malpractice in the course of their representation of Plaintiffs in two lawsuits involving damages caused to Plaintiffs’ property in Osterville, Massachusetts, by certain construction companies. The first lawsuit against the construction companies (the "Barnstable Action") went to trial in June 2008 and resulted in a $37, 000.00 jury verdict in favor of Plaintiffs. The second lawsuit against one of the construction companies’ insurers (the "176D Action") was settled after trial and an appeal for an amount exceeding $1, 000, 000.00.

         The history of the parties’ relationship is not quite as happy as it might sound, however. Not long before trial of the 176D Action began, relations between Plaintiffs and Defendants, their then legal counsel, began to break down due to disagreements on strategy. As a consequence, Plaintiffs sought out and obtained independent legal advice concerning the 176D Action and their disputes with RSB from Attorney Matthew Kane ("Attorney Kane") of the law firm of Donnelly, Conroy & Gelhaar, LLP (collectively, with Attorney Kane, "DCG"). DCG thereafter acted as co-counsel to RSB with respect to portions of the 176D Action, and eventually stepped in as RSB’s successor counsel during the appeal of the 176D Action when Plaintiffs first asserted a malpractice claim against RSB.

         This case was filed in December 2016 and currently is in the discovery phase. Before the Court at present is RSB’s motion to compel DCG to produce its entire file concerning the 176D Action, including any and all communications between DCG and Plaintiffs.[1] RSB argues that DCG’s files and its communications with Plaintiffs are relevant to Plaintiffs’ claims of malpractice and are discoverable in accordance with the Supreme Judicial Court’s decision in Zabin v. Picciotto, 73 Mass.App.Ct. 141, 157-58 (2008) ("[I]n cases ... in which a client sues a former attorney for malpractice, the attorney-client privilege is waived as to communications with all attorneys involved in the underlying litigation in which the malpractice allegedly occurred"). Although Plaintiffs originally took a less conciliatory posture, they now concede that DCG’s case files and communications with Plaintiffs concerning the 176D Action are discoverable, but they oppose Plaintiffs’ motion to compel to the extent that it seeks the production of any DCG files or communications pertaining to Plaintiffs’ disputes and rights vis-a-vis Attorney Rubenstein and/or RSB. These materials, Plaintiffs maintain, remain privileged and not discoverable by Defendants in this proceeding.

          Plaintiffs also have asserted a cross motion to compel RSB to produce its own e-mail communications concerning the Barnstable Action and the 176D Action, which RSB has agreed to produce, but which have been slow to arrive due to various alleged technological challenges faced by RSB. RSB, in response to Plaintiffs’ cross motion, has indicated that it does not oppose the establishment of a reasonable production schedule for the promised e-mails.

         The Court conducted a hearing on RSB’s motion to compel and Plaintiffs’ cross motion to compel on September 11, 2018. All parties appeared. Upon consideration of all of the written materials submitted by the parties and the oral arguments of counsel, RSB’s motion to compel is ALLOWED IN PART to the extent and for the reasons memorialized, briefly, below. The Court takes NO ACTION at present on Plaintiffs’ cross motion pending additional search efforts by RSB and a further status conference to be conducted by the Court.

         As to RSB’s motion to compel, the Court agrees with both sides that, because DCG was "involved in the underlying litigation in which [Defendants’) malpractice allegedly occurred," DCG’s case files and communications with Plaintiffs concerning the 176D Action are discoverable by RSB in this proceeding. See Zabin, 73 Mass.App.Ct. at 157-58. The Court further agrees with Plaintiffs, however, that DCG files or communications pertaining solely to Plaintiffs’ disputes and rights vis-a-vis Attorney Rubenstein and/or RSB remain privileged and not discoverable by RSB. In allowing discovery of the defendants’ successor counsel as to the "underlying litigation" in Zabin, the Appeals Court expressly recognized that the permissible scope of that discovery did not extend to "communications between [successor counsel) (or her law firm) and the defendants relating to the preparation and conduct of the present [malpractice] case." Id. at 158. This Court regards DCG files and communications pertaining solely to Plaintiffs’ disputes and rights vis-a-vis Attorney Rubenstein and/or RSB to fall within the latter, protected category and, thus, to be not discoverable by RSB.

         The discoverability of RSB’s e-mail communications, on the other hand, is not in dispute. The problem is one of logistics. RSB reports that it has collected the voluminous data files containing all of its relevant e-mails and has conducted a preliminary electronic search for responsive documents utilizing its own list of search terms. Plaintiffs, however, have a set of supplemental search terms that they want RSB to employ, and RSB has agreed to do so. No meaningful progress on Plaintiffs’ cross motion to compel can be made unless and until all requested searches have been performed. Accordingly, the Court will defer taking action on Plaintiffs’ cross motion to compel until after RSB has completed the electronic search process and the parties have had an opportunity to confer on what, if any, disagreements remain regarding RSB’s e-mail production.

         For the foregoing reasons, IT IS HEREBY ORDERED that:

         1. Within twenty-one (21) days of the date of this Order, Plaintiffs and/or DCG shall produce to RSB copies of any and all DCG case files and communications with Plaintiffs relating to the 176D Action, including, but not limited to, any and all files and communications discussing or recommending the settlement of that action and/or any steps to be taken in that action, provided, however, that Plaintiffs and DCG shall not be required to produce any DCG files or communications pertaining solely to Plaintiffs’ disputes and rights vis-a-vis Attorney Rubenstein and/or RSB;

          2. Plaintiffs and/or DCG’s production of documents pursuant to Paragraph 1 of this Order, supra, shall be accompanied by a privilege log that describes each DCG file or communication withheld pursuant to the proviso contained in Paragraph 1 in sufficient detail so as to allow RSB to reasonably comprehend the complete, specific subject matter of the file or communication withheld, and to fairly challenge Plaintiffs’ and/or DCG’s assertion of privilege with respect to such file or communication, if warranted;

         3. Within twenty-one (21) days of the date of this Order, RSB shall conduct an electronic search of its data files containing all of its relevant e-mails using the supplemental search terms provided by Plaintiffs and shall report the results of that search, in terms of volume of materials identified as potentially responsive, to Plaintiffs. The parties thereafter shall confer on a mutually-acceptable method and timetable for the production of all responsive e-mails by RSB; and

         4. The parties shall appear for a status conference on October 11, 2018, at 2:00 p.m., and shall submit to the Court a short written report concerning the status of their ...


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