United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR
Gail Dein, United States Magistrate Judge
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.
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). 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). 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.
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
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:
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.
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.
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.
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.
STATEMENT OF FACTS 
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.
of Relationship between Fougere and 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.).
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
about February 1, 2013, Fougere became an Exclusive Agent for
Allstate. (PR ¶ 7). As such, he entered into an
Exclusive Agency Agreement with Allstate and began
operating an Allstate agency under the name Local Agents,
Inc. (PF ¶ 20; DR ¶ 20). It is undisputed that
Fougere was an independent contractor under the terms of the
Agreement. (EA Agreement ¶ I.D).
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)).
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.
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).
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.
of Relationship between Brody-Isbill and
an admitted lack of experience, in 2014 Brody-Isbill applied,
and was accepted into the EA training program. (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. (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).
Leading to the Termination of the EA Agreements
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. (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
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).
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.
of Allstate Customer Information
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” 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.)
of the Spreadsheets
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).
20, 2016, three former employees 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).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).
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).
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.
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
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).
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.
factual details relevant to the court's analysis shall be
described below where appropriate.
ANALYSIS - DEFENDANTS' MOTIONS TO STRIKE AND DISQUALIFY;
PLAINTIFF'S MOTION FOR SANCTIONS
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.
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. (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).
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.).
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.
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
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.
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. 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