10 N.E.3d 659
Mass. App. Ct.2014Background
- Plaintiffs sued Benistar and Merrill; Merrill was defended in the 2002 trial by Bingham McCutchen LLP (Snyder lead counsel). After a new trial was ordered, documents surfaced in 2009 showing a Merrill employee (Malia) had viewed Benistar’s §1031 web pages on Sept. 20, 2000 and faxed them to a Merrill manager (Rasmussen).
- Bingham (through Snyder and Merrill in-house counsel) classified the Malia file as work product and withheld it; Snyder therefore did not supplement interrogatory answers or disclose that Malia had viewed the §1031 pages.
- At the 2002 trial Bingham repeatedly argued and elicited testimony that Merrill employees did not know Benistar was holding third‑party funds and had not visited the §1031 pages; that defense was directly contradicted by the withheld Malia file.
- After the documents were produced in 2009, plaintiffs moved for sanctions against Merrill and intervener Bingham; the trial judge found Snyder acted in good faith and denied sanctions; plaintiffs appealed.
- The appellate court held Bingham lacked an adequate legal basis to withhold the fact that Malia viewed the §1031 pages (fact work product) and yet assert the contrary at trial; the matter was vacated as to Bingham and remanded for further proceedings to determine sanctions and good faith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bingham could withhold Malia’s visit to Benistar §1031 pages as work product while asserting Merrill lacked that knowledge at trial | Withholding was improper because the visit is factual work product central to plaintiffs’ aiding‑and‑abetting claim and discoverable | The file was work product (investigation under counsel) and thus properly protected from disclosure | Court: Fact work product receives limited protection; withholding the fact of the visit lacked adequate legal basis when that fact was central and contradicted the defense; remand for factfinder on good faith/sanctions |
| Whether work product protection survives where the opposing party shows substantial need / centrality | Plaintiffs: substantial need and the info was essential; trial court had ordered production of web‑site visits | Bingham: materials prepared or obtained in anticipation of litigation, so protected | Court: Comcast/Adlman principles apply — substantial need and the distinction between opinion vs fact work product mean disclosure can be required; here the fact of the visit is discoverable |
| Appropriate grounds and authority for sanctions | Plaintiffs: sanctions under court’s inherent power, Mass. R. Civ. P. 11, and discovery rules for failure to supplement interrogatories | Bingham: acted reasonably and in good faith relying on work product doctrine | Court: Declined definitive sanction now; remanded to determine whether sanctions under inherent power, Rule 11, or discovery rules are warranted based on further factfinding about good faith and effect of nondisclosure |
| Benistar defendants’ motion for new trial based on the later‑produced documents | Benistar: newly produced documents require a new trial | Plaintiffs/Merrill: prior rulings (including Cahaly) show those documents do not change outcome | Court: Denied new trial to Benistar; earlier appellate and SJC rulings control; denial affirmed |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (discusses work product doctrine and limits on shielding factual materials)
- Comcast Corp. v. Commissioner of Revenue, 453 Mass. 293 (Mass. 2009) (explains substantial‑need exception and fact vs. opinion work product)
- McCarthy v. Slade Assocs., 463 Mass. 181 (Mass. 2012) (applies work product limits where knowledge of plaintiff/attorney is put in play)
- Ward v. Peabody, 380 Mass. 805 (Mass. 1980) (work product may be produced when counsel’s activities are directly at issue)
- Adlman v. New York, 68 F.3d 1495 (2d Cir. 1995) (discusses purpose‑based work product doctrine and exceptions)
- In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007 (1st Cir. 1988) (distinguishes disclosure of documents reviewed by counsel from disclosure of counsel’s mental impressions)