McCarthy v. Slade Associates, Inc.
463 Mass. 181
Mass.2012Background
- Cross-appeals in three consolidated Superior Court cases challenge a discovery order premised on at-issue waiver of attorney-client privilege and work product protection.
- McCarthy sued multiple defendants including attorneys and a surveyor for not disclosing that parcel 2 did not abut the McDermott property, leading to damages.
- The Land Court action involved Lipkind and B&L; the order required Lipkind to answer questions and B&L to produce Heatley-related documents and Heatley-involved materials.
- The motion judge found relevance and ordered discovery based on at-issue waiver and work product, including billing records and Heatley materials, with redactions for true privilege or opinion work product.
- Key disputed issues centered on whether at-issue waiver applies to the attorney-client privilege and whether work product materials may be discovered under Rule 26(b)(3) given substantial need and lack of alternatives.
- On appeal, the Supreme Judicial Court affirms in part and reverses in part, remanding for further proceedings with guidance on scope, redactions, and privilege logs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether at-issue waiver defeats attorney-client privilege. | McCarthy; at-issue waiver applies given discovery-rule reliance. | Defendants; waiver applies when necessary to test knowledge for statute of limitations. | Not here; waiver not shown for privilege; work product governs. |
| Whether the defendants may discover ordinary work product from B&L. | McCarthy; protection extends to work product; broad protections may apply. | Defendants; substantial need justifies discovery of ordinary work product. | Yes; substantial need shown and no adequate alternative; redaction for opinion work product allowed. |
| Whether seven Lipkind questions and certain documents are discoverable. | Questions/Docs relate to knowledge of parcel locations and timing. | Need to test limitations defenses and know-what-prior-knowledge; some privilege applies. | Questions 1–3 discoverable; 4–5 protected by privilege; 6–7 partially; remand for privilege review and logs. |
| Whether discovery of Heatley materials is permissible given privilege and work product. | Heatley materials relevant to B&L’s knowledge; needed for substantial need. | Subject to privilege; opportunity for redaction and camera review. | Allowed to the extent not revealing privileged material; redaction of opinion work product appropriate. |
Key Cases Cited
- Darius v. Boston, 433 Mass. 274 (Mass. 2001) (recognizes at-issue waiver limits and need for non-privileged sources)
- Comcast Corp. v. Attorney Gen., 453 Mass. 293 (Mass. 2009) (foundation for attorney-client privilege and work product distinction; scope of waiver)
- Ward v. Peabody, 380 Mass. 805 (Mass. 1980) (work product protection vs. adversary needs; guiding principles for discovery)
- Greater Newburyport Clamshell Alliance v. Public Serv. Co. of N.H., 838 F.2d 13 (1st Cir. 1988) (protects privilege against compelled disclosure when not essential to case)