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Allstate Insurance Co. v. Fougere

United States District Court, D. Massachusetts

September 30, 2019

ALLSTATE INSURANCE COMPANY, Plaintiff/Counterclaim Defendant,
v.
JAMES FOUGERE, SARAH BRODY-ISBILL, and A BETTER INSURANCE AGENCY, INC., Defendants/Counterclaimants.

          MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Judith Gail Dein, United States Magistrate Judge

         I. INTRODUCTION

         The plaintiff, Allstate Insurance Company (“Allstate”), has brought this action against its former Exclusive Agents, James Fougere and Sarah Brody-Isbill, and an insurance agency formed by Fougere, A Better Insurance Agency, Inc. (“ABIA”) (collectively, “defendants”). Fougere and Brody-Isbill sold Allstate insurance pursuant to Exclusive Agency Agreements (“EA Agreement”) with Allstate. Allstate terminated their Agreements without notice, allegedly for cause. Allstate contends that Fougere and Brody-Isbill breached their EA Agreements, and misappropriated confidential and trade secret information, by failing to return customer information and thereafter using that information at ABIA. While Allstate's objections to the defendants' actions are far-ranging, for purposes of the pending motions, Allstate focuses its arguments on two spreadsheets, known as “TU Framingham” and “TU Auburn, ” and the infor-mation contained therein, including the names of thousands of Allstate customers along with their renewal dates, premiums, types of insurance, Allstate policy numbers, drivers' license numbers, home addresses, phone numbers, and email addresses. For their part, the defendants contend that Fougere created the spreadsheets, and that the information was theirs to take and use both as a matter of contract and statute. In addition, the defendants contend that they were statutorily entitled to 180 days notice prior to their terminations.

         This matter is presently before the court on “Plaintiff's Motion for Summary Judgment” (Docket No. 130) and “Defendants/Counterclaimants' Motion for Partial Summary Judgment.” (Docket No. 126). Allstate has brought an 11 count Amended Complaint against the defendants (Docket No. 11), and the parties have filed cross-motions for summary judgment on seven of those counts alleging breach of contract (Counts I & V) and misappropriation of trade secrets (Counts II & VI) by Fougere and Brody-Isbill, and violation of the Defend Trade Secrets Act of 2016, 18 U.S.C. §§ 1839 et seq. (“DTSA”) by each of the defendants. (Counts III, VII & IX).[1] The defendants have filed a Counterclaim (Docket No. 22), alleging breach of covenant of good faith and fair dealing (Count I) and violation of Mass. Gen. Laws ch. 175, § 163 (Count II) for failure to give statutory notice prior to terminating the EA Agreements, and violation of Mass. Gen. Laws ch. 175, § 162F (Count III) for claiming ownership in the client information that allegedly belongs to them pursuant to this statute. In addition, the defendants claim that Allstate violated Mass. Gen. Laws ch. 93A in connection with the termination of their Agreements (Count V).[2] Allstate has moved for summary judgment on all of these counterclaims, while the defendants have moved for summary judgment on the claim under ch. 175, § 163.

         In connection with the motion for summary judgment, the defendants have moved to strike several paragraphs of an affidavit submitted by plaintiff's counsel, and to disqualify plaintiff's counsel. (Docket Nos. 150, 151). Plaintiff has countered with a motion for sanctions. (Docket No. 161).

         After careful consideration of the very complex record, and the parties' written and oral arguments, and for the reasons detailed herein, this court rules as follows:

         1. Defendants' motion to strike (Docket No. 150) is ALLOWED, defendants' motion to disqualify (Docket No. 151) is DENIED and plaintiff's motion for sanctions (Docket No. 161) is DENIED. In addition, the court will not consider the email purportedly obtained from counsel for the Massachusetts Division of Insurance and related arguments.

         2. With respect to the Counterclaim, neither Mass. Gen. Laws ch. 175, § 163 nor ch. 175, § 162F apply to the defendants as Exclusive Agents of Allstate, so Allstate's motion for summary judgment is ALLOWED on Counts I, II and III of the Counterclaim, and defendants' motion for summary judgment on Count II of the Counterclaim is DENIED.

         The court finds further that it is questionable that Mass. Gen. Laws ch. 93A applies to the parties' contractual arrangement, but for reasons different than those argued by the parties. Therefore, the plaintiff's motion for summary judgment on Count V of the Counterclaim is DENIED WITHOUT PREJUDICE. The court will allow the plaintiff to move for summary judgment on this claim again, if it believes it to be warranted.

         3. With respect to Allstate's claims, this court finds that the TU Framingham and TU Auburn spreadsheets, and the information contained therein, are confidential and trade secret information belonging to Allstate. This court finds further that Fougere and Brody-Isbill breached their contract by failing to return this information to Allstate, and by using this information at ABIA, and misappropriated Allstate's trade secrets for the same reasons. However, the extent of such use after the termination of the EA Agreements and the extent of damages, if any, are in dispute. Therefore, Allstate's motion for summary judgment as to Counts I, II, III, V, VI, VII, and IX is ALLOWED AS TO LIABILITY ONLY, and the defendants' cross-motion as to those Counts is DENIED. This ruling is limited to the TU Framingham and TU Auburn spreadsheets and the information contained therein.

         II. STATEMENT OF FACTS [3]

         The parties' statements of fact, and responses thereto, include many allegations that are extraneous to the issues before the court in connection with the cross-motions for summary judgment, and are very argumentative. This court has carefully scrutinized the pleadings to determine if the facts alleged are actually material to the issues this court must decide, and, if so, the scope of the alleged disputes and whether the disputes are genuine or merely form over substance. The following recitation of facts reflects this court's best effort to distill the record to relevant facts, and they are undisputed unless otherwise indicated.

         Formation of Relationship between Fougere and Allstate

         Allstate is in the business of providing insurance and other financial products and services to individuals and businesses. (PF ¶ 1). In or about 2009, Allstate began selling auto and causality insurance in Massachusetts through its call centers and agents in neighboring states. (PR ¶ 1). Three years later, in 2012, Allstate began to open “brick and mortar” locations in Massachusetts. (Id.).

         Defendant Fougere began his insurance career with Liberty Mutual in 2010. (DEx. 3 at 37, 38). He continued to work as a licensed insurance agent with Liberty Mutual until he left to manage another insurance agency, the defendant A Better Insurance Agency (“ABIA”). (DF ¶ 6; PR ¶ 6). ABIA was formed on June 29, 2012 by Fougere's mother, Donna Fougere, who retained a 100 percent ownership interest in the company. (PF ¶¶ 43, 44; PEx. K). At the time ABIA was incorporated, Donna Fougere was working full time as a nurse and had no prior experience in the insurance industry. (PF ¶ 45). The parties dispute the extent to which Donna Fougere was involved with ABIA. (See DR ¶¶ 45-47; PR ¶ 6). It is undisputed, however, that Fougere managed ABIA before becoming affiliated with Allstate. (PR ¶ 6).

         On or about February 1, 2013, Fougere became an Exclusive Agent for Allstate. (PR ¶ 7). As such, he entered into an Exclusive Agency Agreement with Allstate[4] and began operating an Allstate agency under the name Local Agents, Inc. (PF ¶ 20; DR ¶ 20).[5] It is undisputed that Fougere was an independent contractor under the terms of the Agreement. (EA Agreement ¶ I.D).

         Fougere was a “scratch” insurance agent. (PR ¶ 7). As such, Fougere was not provided with existing Allstate customers or accounts when he began working for Allstate. (Id.). Instead, he was tasked with soliciting new clients for the company. (Id.). Fougere's obligation to develop business was reflected in the EA Agreement as follows:

Agency will meet certain business objectives established by the Company in the areas of profitability, growth, retention, customer satisfaction and customer service. Agency will build and maintain a profitable book of business, assist the Company in its efforts to achieve market penetration for all forms of insurance offered by the Company and other Company Business, and service the Company's customers in a manner consistent with the Company's goodwill, reputation, and overall business strategy.

(EA Agreement ¶ II.B (emphasis added)).

         As detailed more fully below, the defendants contend that the customer information they gathered belonged to them, while Allstate contends that it belongs to Allstate. This court agrees with Allstate. The EA Agreement defines “confidential information” in part as including “information regarding the names, addresses, and ages of policyholders of the Company; types of policies; amounts of insurance; premium amounts; . . . the expiration or renewal dates of policies; policyholder listings and any policyholder information subject to any privacy law[.]” (Id. ¶ IV.D). It further provides that “[a]ll such confidential information is wholly owned by the Company” and “may be used by Agency only for the purposes of carrying out the provisions of this Agreement.” (Id.). Upon termination of the Agreement, the Agency was obligated to continue to treat the information as confidential (id. ¶ IV.B) and to return to Allstate all confidential information (id. ¶ XVIII.B), which included confidential information “recorded on paper, elec-tronic data file, or other medium, whether provided by the Company or the Agency[.]” (Id. ¶ IV.E). For the reasons detailed below, this court concludes that the defendants' retention of such customer information and the transfer of that information to ABIA following the termination of the EA Agreements constitute a breach of contract and misappropriation of trade secrets.

         Fougere hired several employees to work at Local Agents, including his longtime girlfriend, Joanne Brody, and her daughter, Sarah Brody-Isbill. (See DR ¶ 33; PF 22). Defendant Brody-Isbill became a licensed insurance agent in Massachusetts that same year. (DR ¶ 33). The defendants assert, but the plaintiff denies, that Fougere was encouraged to transfer existing clients to Allstate and that Exclusive Agents were permitted, and even encouraged, to sell products from other carriers. (DR ¶¶ 2-3; PR ¶ 7). The EA Agreement provides, as detailed more fully below, that the “Agency will not, either directly or indirectly, solicit, sell, or service insurance of any kind for any other company, agent, or broker, or refer a prospect to another company, agent, or broker, without the prior written approval of the Company.” (EA Agree-ment ¶ I.E). The Contractor Manual, which is part of the EA Agreement (see id. ¶ I.C), provides that as an Exclusive Agent “you may not directly or indirectly solicit, sell or service insurance of any kind for any other company without prior written approval from the Company. . . . Any involvement in an independent agency's business operation would be prohibited as it would constitute indirect soliciting, selling, or servicing insurance[.]” (PEx. OO at 10). Finally, the EA Agreement provides that “[f]or a period of one year following termination” of the Agreement, neither the Agency nor the Key Person were to “solicit the purchase of products or services in competition with those sold by the Company.” (EA Agreement ¶ XVIII.D).

         Fougere operated his Allstate agency out of a location in Framingham, Massachusetts. (PF ¶ 21). At least initially, Allstate seemed pleased with his performance: he received a number of sales awards for his high levels of production and was placed on Allstate's Regional Advisory Board. (See PR ¶¶ 13, 14). Nevertheless, during the course of his operation as an Exclusive Agent for Allstate, Fougere contends that he “identified and brought to the attention of management at Allstate numerous violations of Massachusetts insurance laws and regula-tions[, ]” which Allstate strenuously denies. (See DF ¶ 15; PR ¶ 15). It is Fougere's contention that it was his conduct in reporting such violations that was the true reason his EA Agreement was terminated.

         Formation of Relationship between Brody-Isbill and Allstate

         Despite an admitted lack of experience, in 2014 Brody-Isbill applied, and was accepted into the EA training program.[6] (PF ¶ 37). She underwent training, although she denies that it included any training about keeping customer information confidential. (See PF ¶ 5; DR ¶ 5). Around the time of the training, on April 1, 2014, Brody-Isbill entered into an Exclusive Agency Agreement with Allstate and opened up an Allstate office in Auburn, Massachusetts.[7] (See DF ¶ 16; PEx D; DR ¶ 38). The defendants contend that Brody-Isbill did not read the EA Agreement before signing it, because she was told she would have a chance to review it later. (DF ¶ 17). In fact, Brody-Isbill contends that she never read the EA Agreement. (PR ¶ 17).

         Events Leading to the Termination of the EA Agreements

         On August 29, 2014, two new entities were formed using the address 1661 Worcester Road, Framingham, Massachusetts: Thumbs Up Marketing, Inc. (“Thumbs Up”) and Awesome Agents, Inc. (“Awesome Agents”), an insurance agency. (PF ¶ 79; see DR ¶¶ 80-83). Fougere claims that Thumbs Up was a marketing company that bought and sold leads. (DF ¶ 8). Allstate disputes this, claiming that it was another insurance agency.[8] (PR ¶ 8). Fougere was listed as the owner of Thumbs Up and Joanne Brody was the owner of Awesome Agents. (DR ¶¶ 80-81). It is Allstate's contention that the defendants, unbeknownst to Allstate, were operating ABIA, Thumbs Up, Awesome Agents and the Allstate offices as a single group - transferring customers and referrals among themselves and improperly sharing Allstate's customer information. (See PF ¶¶ 50-57, 82-83). The defendants deny this, and assert that the common link was Thumbs Up, which “directed leads to the different agencies and they would receive them basically on a queue system.” (DR ¶ 51). Since much of this conduct goes beyond the scope of the summary judgment motions, it will not be explored in detail further.

         In September of 2014, an Allstate employee working under Fougere, Adam Kozerski, emailed Allstate about what he viewed to be troubling agency practices, including, without limitation, the co-mingling of business between Fougere's and Brody-Isbill's Allstate agencies. (See PF ¶¶ 58-59; PEx. S). Allstate contends that it launched an investigation in response to the email, and that practices were discovered which gave the Company grounds to terminate Fougere's EA Agreement for cause, and without notice. (See PF ¶¶ 61-69; PEx. J) Allstate terminated Fougere's EA Agreement on November 19, 2014 without notice. (PF ¶ 69). It also cut off his access to Allstate's online electronic records portal and collected any physical files in Fougere's Allstate agency office. (Id. ¶ 70). The merits of the termination are not at issue in connection with the motions for summary judgment, other than the defendants' contention that they were not afforded the notice and other rights provided by statute. Suffice it to say that the defendants dispute everything related to Allstate's decision to terminate, including whether the termination was based on the findings of Allstate's investigation. (See DR ¶ 69). It is undisputed, however, that after the termination of his EA Agreement, Fougere assumed the title of “sales manager” at ABIA. (PF ¶ 85).

         Allstate did not terminate Brody-Isbill's EA Agreement at the same time as Fougere's. Instead, according to Allstate, but denied by the defendants, she was cautioned not to allow Fougere to have any role in the operation of her agency, and she was advised about unacceptable business practices. (See PF ¶¶ 72-74; DR ¶¶ 72-74). According to Allstate, but again denied by the defendants, Brody-Isbill's compliance issues continued. (PF ¶ 75; DR ¶ 75). It is undisputed that Allstate terminated Brody-Isbill's EA Agreement on October 5, 2015, effective immediately. (PF ¶ 76). Her access to Allstate's electronic records portal was terminated and Allstate collected the physical files in her Allstate office. (PF ¶ 77). Again, as the merits of the termination decision are not at issue in these summary judgment motions, the facts will not be discussed further herein.

         Use of Allstate Customer Information

         It is Allstate's contention that the defendants repeatedly used its customer information for their other businesses, including ABIA and Thumbs Up. In support of this contention, Allstate points to the following memoranda, which are not disputed, and which Allstate contends it discovered during its own internal investigations. Thus, on July 26, 2014, Fougere sent an email to Brody-Isbill, Joanne Brody and Bruce Walker (ABIA's sales manager) attaching a spreadsheet which included the names, Allstate policy numbers, renewal dates, premiums, names, addresses and phone numbers of Allstate customers. (PF ¶ 55-56). On March 25, 2015, while Brody-Isbill was still an Allstate Exclusive Agent, a Thumbs Up employee circulated a memorandum about generating sales leads. (PF ¶¶ 86-87; PEx. AA). The memorandum instructed employees to transfer sales leads to Auburn sales agents (i.e., Brody-Isbill's agency), and if Auburn was unsuccessful, then to ABIA sales agents. (Id.). The email also states that “phase two” of the strategy was to use “Allstate Book of Business” to generate leads. (Id.). On April 3, 2015, Thumbs Up employee Inna Tunik emailed Joanna Brody at her Awesome Agents email address, copying Fougere, and referenced the use of “Allstate - X date/Requote”[9] and “James's Customer List” as potential sources of leads. (PF ¶ 88; PEx. BB). On July 20, 2015, Tunik again emailed Fougere at his ABIA address and Joanne Brody regarding “reports for the previous week.” (PF ¶ 91; PEx. DD). The reports referenced the “Allstate Customer List - Framingham” as a source for leads. (Id.)

         Discovery of the Spreadsheets

         As noted above, Brody-Isbill's EA Agreement was terminated by Allstate on October 5, 2015. (PF ¶ 76). On November 11, 2015, Allstate's attorney sent a letter to Fougere's attorney stating that Allstate had “reason to believe that Fougere still possesses Allstate confidential information and, even more disturbing, has already used this information to solicit Allstate customers on behalf of his insurance agency, ‘A Better Insurance Agency.'” (PF ¶ 92; PEx. EE). The letter requested written assurance from Fougere's counsel that Fougere did not possess and was not using Allstate confidential information, as defined in his EA agreement. (PEx. EE). On January 11, 2016, Fougere's counsel replied in writing to Allstate's attorney that “Fougere has not utilized any customer lists or confidential information of Allstate to solicit clients.” (PF ¶ 93; PEx. FF). Additionally, the letter assured Allstate that Fougere would “continue to respect and not disclose any confidential information of Allstate[.]” (PEx. FF).

         On July 20, 2016, three former employees[10] of ABIA emailed plaintiff's counsel. (PF ¶ 94; PEx. GG). The email, sent under a fake name, claimed that Fougere “has over 5, 000 customers on a list with all their information and phone numbers from [A]llstate, ” and that Fougere “has his agents call out to these customers[.]” (PEx. GG). In subsequent conversations, and as detailed in affidavits provided in this litigation, these former employees of ABIA represented that Fougere had given them access to files labeled “Framingham Allstate book of business” and “Allstate Auburn book of business, ” contained on a restricted Google Drive, which included the “names, addresses, phone numbers, email addresses, renewal dates, types of insurance policies, and premiums paid by insurance customers.” (PF ¶ 95; PEx. HH ¶¶ 7-9).[11]According to the former employees, Fougere represented, in Brody-Isbill's presence, that these were files that they had retained from their former Allstate insurance agencies. (PEx. HH ¶ 10). Further, they claimed that Fougere instructed them and other ABIA employees to solicit the customers contained within those spreadsheets. (PF ¶ 96; PEx. HH ¶¶ 10-11). The former employees further attested that ABIA routinely received messages addressed to Allstate, and solicited customers identified in those messages. (PEx. HH ¶¶ 13-14). They also claimed that, although they did not witness Brody-Isbill actively solicit clients on behalf of ABIA, she did issue insurance policies on ABIA's behalf and used a fake name when speaking to customers. (Id. ¶¶ 5-6). The defendants “dispute the truthfulness of the statements” made by the former employees, without explanation, and argue that Allstate's counsel drafted the affidavits. (See, e.g., DR ¶ 96).

         The former employees also forwarded portions of the referenced “Framingham Allstate” book of business and “Allstate Auburn“ book of business to Allstate's counsel. (PEx. HH ¶ 16; see Docket No. 30 at ¶ 3). The lists contained the names, customers' addresses, Allstate policy numbers, phone numbers, types of insurance coverage, premiums and renewal dates. (See PF ¶ 95).

         Suit was filed on August 15, 2016. A court ordered forensic examination of ABIA's computers revealed spreadsheets entitled “Allstate-Auburn” and “Allstate-Framingham” in the trash folder of the computer. (See Docket No. 62 at 2). Additional customer lists entitled “TU Framingham” and “TU Auburn” were also located, and Allstate was permitted to take four screen shots of these spreadsheets pending a forensic examination by an independent examiner. (Docket No. 46). By the time the forensic examination was able to be conducted (following much motion practice), the Allstate-Auburn and Allstate-Framingham folders had been permanently deleted. (Docket No. 62 at 8). It is unclear from the present record whether the two sets of documents are just duplicates or if there are four distinct lists.

         In any event, Allstate compared screenshots of the TU Framingham and TU Auburn lists to its audits of Fougere's and Brody-Isbill's book of business, and found that 34 of the 35 names in the Thumbs Up (TU) Framingham list were Allstate customers assigned to Fougere's agency at the time of his termination (PF ¶¶ 99, 100), and that 22 of the 29 customers in the Thumbs Up (TU) Auburn list were Allstate customers assigned to Brody-Isbill's agency. (PF ¶¶101-102). While the defendants question the validity of the audit, they have not put forth any affirmative evidence that Allstate's comparisons were inaccurate.

         Apart from asserting that “persons on the list are not all current customers of Allstate” the defendants admit that the following is true:

The “Thumbs Up Framingham” and “Thumbs Up Auburn” spreadsheets produced by Defendants Fougere and Brody-Isbill each contain the names of thousands of Allstate customers, along with their renewal dates, premiums, types of insurance, Allstate policy numbers, drivers' license numbers, home addresses, phone numbers and email addresses.

(PF ¶ 103; DR ¶ 103).

         Fougere contends that Thumbs Up compiled the lists before, during, and after he was an Allstate agent. (DF ¶ 33; PR ¶ 33). Fougere claims that he derived the information from third party sources such as car dealerships, real estate agents, lead providers, and the RMV. (DF ¶ 32). In support of this assertion, Fougere has belatedly produced in connection with the summary judgment briefing documents he contends demonstrate that he purchased the client information from third-party sources. (See Docket No. 147 Ex. 31). Allstate points out, however, that none of these documents refer to Thumbs Up, some appear to have been generated after suit was filed, and there is no indication in these purported invoices explaining what they are for. (See Docket No. 160 at 5-8). Moreover, it is undisputed that there is no one source from where all the information in the spreadsheets can be obtained.

         Additional factual details relevant to the court's analysis shall be described below where appropriate.

         III. ANALYSIS - DEFENDANTS' MOTIONS TO STRIKE AND DISQUALIFY; PLAINTIFF'S MOTION FOR SANCTIONS

         As an initial matter, this court will address the defendants' motion to strike (Docket No. 150) and motion to disqualify (Docket No. 151), as well as the plaintiff's motion for sanctions. (Docket No. 161). The basis for these motions is a series of interactions between the parties and Edward Phelan, Counsel for the Massachusetts Division of Insurance. As this court ruled at oral argument, the court will not consider the challenged communication or the related legal arguments. The basis for the court's ruling is explained herein.

         It appears that in October 2016, defendant Fougere contacted the Massachusetts Division of Insurance inquiring about whether Mass. Gen. Laws ch. 175, § 163 applies to “exclusive agents if they are not employees.” (See DEx. 21). Phelan responded to Fougere's inquiry via email. (Id.). The plaintiff contends that this email was not produced during discovery, and the defendants have not produced any evidence to the contrary.[12] (See Docket No. 161 at 3). Despite this, defense counsel, Timothy Cutler, quoted Phelan in support of defendants' legal argument about the applicability of Mass. Gen. Laws ch. 175, § 163 in the defendants' memorandum in support of their motion for partial summary judgment. (See Docket No. 127 at 39). The defendants attached a redacted version of the email as an exhibit. (See DEx. 21).

         Plaintiff's counsel, Kevin Mahoney, subsequently called Phelan after learning that the defendants were relying on Phelan's email in support of their motion. (PREx. DD ¶ 3). Mr. Mahoney then included an affidavit relaying the substance of this telephone conversation as an exhibit to the plaintiff's responses to the defendants' statement of undisputed facts. (Id.).

         Defendants now seek to strike two paragraphs from Mr. Mahoney's affidavit and to disqualify the averring attorney from working on this case. In particular, defendants are seeking to strike paragraphs 4 and 5 of Attorney Mahoney's affidavit, which provide as follows:

4. Mr. Phelan further stated that his email should not to [sic] be construed as an official policy statement of the Massachusetts Division of Insurance.
5. Mr. Phelan further stated that the only official interpretation of the statute addressed in his email would be promulgated by the Massachusetts Division of Insurance and that, to the best of his knowledge, the Division of Insurance has never published any official guideline on the interpretation of that statute.

         Defense counsel argues that the affidavit's references to statements made by Phelan constitute inadmissible hearsay. He further contends that plaintiff's counsel has violated Massachusetts Rules of Professional Conduct Rule 3.7 by “affirmatively interject[ing] himself into the proceedings as a witness.” (Docket No. 151 at 1). The plaintiff counters that these motions were made in bad faith, and has moved for sanctions under Fed.R.Civ.P. 11 and seeks attorneys' fees.

         As this court stated at the hearing on the present motions held on May 6, 2019, Mr. Mahoney's affidavit and Fougere's email correspondence with Edward Phelan both constitute inadmissible hearsay. Each of these exhibits contains out-of-court statements by Phelan that have been offered substantively on the issue of the defendants' Mass. Gen. Laws ch. 175, § 163 claim. See Fed.R.Evid. 802. Accordingly, while the motion to strike is ALLOWED, this court also will not consider Phelan's email (DEx. 21) or the related legal arguments.

         There is no basis for disqualifying plaintiff's counsel as a result of these events. As an initial matter, given that defendants produced the email for the first time in connection with the summary judgment pleadings, and did not give the plaintiff the opportunity to explore the significance of Phelan's comments during discovery, Mr. Cutler should not be surprised that the plaintiff felt the need to follow up with Phelan outside of formal discovery and in an expedited manner as part of the summary judgment record. Moreover, this court does not find a violation of Massachusetts Rules of Professional Conduct Rule 3.7.[13] As that Rule provides, in relevant part:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services ...

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