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pares 9
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Peden’
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. SUPERIOR COURT
C.A. NO, 2272CV00495
JENNIFER DOE,
Plaintiff,
Vv
ESTATE OF ARNOLD F. LETT, SR,
By its Personal Representatives,
Scott Gowen and Alan Liguori,
Defendant.
DEFENDANT'S OPPOSITION TO ARNOLD F. LETT, JR.’S MOTION TO QUASH
DEPOSITION SUBPOENA DUCES TECUM
Now comes the Defendant and submits this Opposition to Arnold F. Lett, Jr.'s
Motion to Quash Deposition Subpoena Duces Tecum.
Factual Background
Arnold F. Lett, Jr. (“Junior”) is the son of
Arnold F. Lett, Sr. (“Senior”), whose estate is the defendant in this action. Junior is a
member of the Massachusetts bar. He is not Doe’s attorney of record in this matter.
Legal Standard
Under Mass. R. Civ. P. 26(c) discovery may be limited or protective order issued
to “protect a person from annoyance, embarrassment, oppression or undue burden or
expense,” when good cause is shown. The moving party's burden of proof is to
demonstrate that discovery is being used in an oppressive, unnecessary, irrelevant, or Y
other improper manner that may lead to specific prejudice or harm, then a court may
intervene. Lord, 2006 WL 1075588 at *2, See Cronin v. Stryer, 392 Mass. 525, 536 (1984).
Lord v. Grove Mfg. Co., 1993 WL 818914 at *1 (Superior Ct. 1993). The moving party
must demonstrate a particularized and significant need for protection. See Trustees v.
Magill, 2006 WL 1075588 at *2 (Superior Ct. 2006). A broad allegation that lacks
specificity will be insufficient grounds for a motion to quash. See Lord.
Argument
The Motion to Quash offers no argument, much less any proof satisfying the
requirements for quashing the Notice of Taking Deposition and Subpoena Duces
Tecum.
Doe testified at deposition that she surreptitiously and illegally recorded a
conversation with Scott Gowen (one of the Estate’s Representatives) on May 22, 2022
and that the deponent, _who is an attorney, listened to the recording, She did
not produce the recording in her response to a Request for Production of Documents
served prior to her deposition or in the six weeks since (a Motion to Compel production
of the recording is pending). When asked if the recording was still in her possession,
she responded “it might be somewhere.” She testified that had listened to the
recording. She then offered that “ might have a record. I don’t know...
maybe [has it], but I don’t want to speak for him because I don’t know ... .” (Ex. A)
Doe alleges she was molested by , Senior, over a period of years
while she was a minor, and that she continues to be affected by the experience as an
adult. She testified that she lived with throughout that
period prior to attending college; returned to live with them periodically during those
years; and currently she lives with her fiancé at her parents’ home.
Based on the plaintiff's deposition testimony, is a witness the
defendant has the right to depose. He is not permitted to declare he “will not be
testifying in this case” as that is not his decision to make. The defendant is permitted to
depose him concerning his interactions with the decedent both during
the period of alleged abuse and subsequent thereto, as well as his knowledge of the
illegal recording. His testimony is reasonably calculated to lead to the discovery of
admissible evidence, including the plaintiff's allegations of assault and her damages,
and a possible counterclaim based on the illegal recording. Whether Junior is in
possession of the illegal recording, is not dispositive of the defendant's right to inquire
about the recording,
While the plaintiff is a practicing member of the bar, he is not entitled to assert a
blanket objection to any conversations he has had He must establish
that an attorney-client relationship existed at the time of and with respect to any such
conversations. Her testimony raises the issue of his obligations once he learned that his
daughter illegally recorded a conversation with the Estate’s representative (her attorney
of record has asserted she was unawareof the illegal recording). In any event, the
assertion of a privilege, if valid, would be on a question-by-question basis given the
scope of possible examination.
Conclusion
For the reasons set forth herein, the Defendant submits the Motion to Quash be
denied.
The Defendant,
By its Attorneys,
dsf Scott J. Tucker
Scott J. Tucker - BBO# 503940
Ann M. Donovan - BBO# 552819
Tucker, Dyer & O’Connell, LLP
199 Wells Avenue
Newton, MA 02459
SJT - (617) 986-4223
AMD - (617) 986-4205
tucker@tdolaw.com
donovan@tdolaw.com
Dated: January 22, 2024
1
|
CERTIFICATE OF SERVICE
I, Scott J. Tucker, hereby certify that on January 22, 2024, I have served a copy of:
DEFENDANT'S OPPOSITION TO ARNOLD F. LETT, JR.'S MOTION TO QUASH
DEPOSITION SUBPOENA DUCES TECUM
by electronic and facsimile only, to the following counsel of record:
Kristen Greenwood, Esquire
Law Office of Kristen Greenwood, PLLC
349 Old Plymouth Rd., First Floor
Sagamore Beach, MA 02562
kristen@attykg.com
(F) 508-815-1620
by USPS mail to:
Arnold F. Lett, Jr.
P.O. Box 105
West Dennis, MA 02670-0105
/sf Scott J. Tucker
Scott J. Tucker
xhibitA
Pages: 1-84
Exhibits: 1-2
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss. UPERIOR COURT
C.A. NO.: 2272CV00495
JENNIFER DOB,
Plaintiéé,
~
Vv.
ESTATE OF ARNOLD F. LETT, SR.,
By its Personal Representatives,
Scott Gowen and Alan Ligouri,
Deféndant.
DEPOSITION OF appearing
at Tucker, Dyer & O'Connell, LLP, 199 Wells Avenue,
Newton, MA 02459, taken pursuant to Notice under the
applicable provisions cf the Massachusetts Rules of
Civil Procedure on behalf of the Defendant, before
Linda M, Ordway, Professional Court Reporter and
Notary Public in and for the Commonwealth of
Massachusetts, commencing on Wednesday, November 29,
2023, at 10:06 a.m.
SIMONNE J. ELWOOD ~ COURT REPORTERS
117 MENDON ROAD
NORTH ATTLEBORO, MA 02760
508-577-1181 FAX 508-761-S677 samjerpr@aol.com
APPEARA N c zE s
FOR THE PLAINTIFF:
Kristen Greenwood, Esquire
LAW OFFICE OF KRISTEN GREENWOOD, PLLC
349 Old Plymouth Road, First Fleor
Sagamore Beach, MA 02562
508-299-3965
kristen@attykg.com
FOR THE DEFENDANT:
Scott J. Tucker, Esquire
TUCKER, DYER &{ O'CONNELL, LLPw gt
199 Wells Avenue
~_
Newton, MA 02459
617-986-4223
tucker@tdolaw,
com
40
occurred on or around May 2, 2022; am I correct?
A. Yeah.
Q. And the content of that conversation starts
after the letter C and continues for one, two,
three -- six paragraphs, correct?
A. Yep.
Q. And your answer includes what Scott Gowen
said, what you said, what your mother said, correct?
A. I am just going to look at it for a second.
10 Q. Sure,
11 A. Okay, I am ready.
12 Q. When you prepared this answer did you have
13 access to any notes or any other records of what that
14 conversation was?
15 A. Notes or any records?
16 Q. Any records.
17 A. I'm sorry, can you repeat the question.
18 Q. When you prepared this answer to
19 interrogatory thirteen, two, subpart C, about the
20 conversation that you had in person with Scott Gowen
21 and your mother present on May 22, 2022, did you have
22 any notes or any other record or recordings of that
23 conversation?
24 A. I had a recording of the conversation.
61
Q Okay, I’m sorry, you have speak up.
Did you say you had a recording of the
conversation?
A Yeah, I think the audio.
Q You had an audio recording of the
conversation?
A Yeah, my phone was recording out of the
camera just so that -- so it was like in my pocket and
my phone was recording.
10 Q Was that an iPhone?
a1 A Yeah,
12 Q. Do you still have that iPhone?
13 A Yes.
14 Q. Did you start that apuene recording when you
15 started the conversation?
16 A. I don't know.
17 Q. About did you deliberately record that
18 statement, that conversation?
19 A. I did.
20 Q. Do you still have the recording?
21 A. I think, yeah, I think so.
22 Q And that's a recording between you and your
23 mother and Scott Gowen?
24 A Um-um.
62
Qe Yes?
A Yep.
Q. And did you have Scott Gowen's permission to
record that conversation?
A. I don't know,
Q. I'm sorry?
A. I don't know.
Qe Do you have any recollection of advising
Scott Gowen that you were recording the conversation?
10 A. I don't know, I don't think so.
1k Q. And you had a phone in your pocket the whole
12 time?
13 A Yeah, it was mostly so that I remembered what
14 we were talking about because it's trauma and it's
15 hard.
16 Q. dust so we are clear, you never asked Scott
\
17 Gowen if you had his permission to record that
i8 conversation; is that correct?
19 A I don't think so. I didn't even listen to
20 it. It's just what I remember. Writing down my
21 statement, it was really -- like really bad.
22 Q. Did you discuss with anyone your intention to
23 record that statement hefore the meeting?
24 A No.
63
Q. Did you tell your father you were going to do
that?
A I don't think so.
Q Did your father know you were going to record
that statement?
A. I don't think so.
Q. Does your father now know that you recorded
that statement?
A. Now he knows, yeah.
10 Q. How long has he known that you recorded that
il statement?
12 A I think after it happened because I just..
Q And did you listen to that recording before
14 you drafted your answer to interrogatory number
15 thirteen?
16 A I don't think so.
17 Q Have you listened to it since the day you
18 made the recording?
19 A. I don't remember listening to it again.
20 After I didn't want to, it wasn't a great
21 conversation.
22 Q. Has anyone listened to it?
23 A My dad.
24 Q. When did your dad listen to it?
64
A. Probably after it happened. It's easier
doing that than telling him what happened.
Q Is your dad a lawyer?
A Yeah.
Q. Was there any discussion with your dad,
either before or after you recorded the conversation
with Scott Gowen, about Massachusetts law concerning
recording somebody's statement without their
permission?
10 A. No, I didn't talk about it with my dad
a1 before
12 Q That recording is still in your possession?
13 A. It might be.
14 Q. Is it still on your phone?
15 A, I don't think so, I don't think so. It might
16 be somewhere, I don't know.
17 Q I'm sorry?
18 A He might have a record, I dontt know.
19 Q Who may have it?
20 A My dad maybe, but I don't want to speak for
21 him because +
I don't know. This is just...
22 Q. You produced as part of your response to
23 request for production of documents, which is No. 2,
24 certain materials as part of Exhibit A; do you see
65
that?
A Um-um.
Q Do you see Exhibit A starts after the
pleading?
A Um-um,
Q Now, I want to ask you did you sign the
document which is the request for production of
documents? This is the response but did you see the
original request which lists each of the requests
10 here?
li A. Yeah.
12 Q Did you seek to obtain any medical or mental
13 health records concerning your treatment prior to the
/
14 date that this response was provided?
15 A. The date -- this response was -- did I -~ can
16 you repeat it.
17 Q These requests seek, among other things, your
18 medical and mental health records for various periods
19 of time.
20 My question is: Do you have any of those
21 records in your possession, not here at the
22 deposition, but at home?
23 A. I'm sorry, yeah, I think so. I dontt know,
24 T'm sorry. \
66
Q Do you have a folder with some of your
medical records or a file?
A Yeah, for the most part, yeah.
Q I'm sorry?
A Yeah, just what I save from my appointments
and stuff like if they give me papers.
Q If you look at number fifteen, which is on
page 5 of the request, number fifteen says: All
written or audio statements taken from or given by any
10 person which relate to the occurrences and plaintiff's
iL alleged injuries and damages resulting therefrom.
12 Did I read that correctly?
13 A. You read it correctly.
14 Q. And the recording of your conversation with
15 Scott Gowen would in fact be an audio statement taken
16 from or given by any person which relates to the
17 occurrences and the plaintiff's alleged injuries and
18 damages resulting therefrom, wouldn't it?
19 A I guess.
20 Q Now, in Exhibit A, I just want to determine
21 when certain things came in to existence. The first
22 document in Exhibit A appears to be a three page
23 document which starts, Dear and
24 ends, Sincerely,
Preview
pares 9 ) Peden’ COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT C.A. NO, 2272CV00495 JENNIFER DOE, Plaintiff, Vv ESTATE OF ARNOLD F. LETT, SR, By its Personal Representatives, Scott Gowen and Alan Liguori, Defendant. DEFENDANT'S OPPOSITION TO ARNOLD F. LETT, JR.’S MOTION TO QUASH DEPOSITION SUBPOENA DUCES TECUM Now comes the Defendant and submits this Opposition to Arnold F. Lett, Jr.'s Motion to Quash Deposition Subpoena Duces Tecum. Factual Background Arnold F. Lett, Jr. (“Junior”) is the son of Arnold F. Lett, Sr. (“Senior”), whose estate is the defendant in this action. Junior is a member of the Massachusetts bar. He is not Doe’s attorney of record in this matter. Legal Standard Under Mass. R. Civ. P. 26(c) discovery may be limited or protective order issued to “protect a person from annoyance, embarrassment, oppression or undue burden or expense,” when good cause is shown. The moving party's burden of proof is to demonstrate that discovery is being used in an oppressive, unnecessary, irrelevant, or Y other improper manner that may lead to specific prejudice or harm, then a court may intervene. Lord, 2006 WL 1075588 at *2, See Cronin v. Stryer, 392 Mass. 525, 536 (1984). Lord v. Grove Mfg. Co., 1993 WL 818914 at *1 (Superior Ct. 1993). The moving party must demonstrate a particularized and significant need for protection. See Trustees v. Magill, 2006 WL 1075588 at *2 (Superior Ct. 2006). A broad allegation that lacks specificity will be insufficient grounds for a motion to quash. See Lord. Argument The Motion to Quash offers no argument, much less any proof satisfying the requirements for quashing the Notice of Taking Deposition and Subpoena Duces Tecum. Doe testified at deposition that she surreptitiously and illegally recorded a conversation with Scott Gowen (one of the Estate’s Representatives) on May 22, 2022 and that the deponent, _who is an attorney, listened to the recording, She did not produce the recording in her response to a Request for Production of Documents served prior to her deposition or in the six weeks since (a Motion to Compel production of the recording is pending). When asked if the recording was still in her possession, she responded “it might be somewhere.” She testified that had listened to the recording. She then offered that “ might have a record. I don’t know... maybe [has it], but I don’t want to speak for him because I don’t know ... .” (Ex. A) Doe alleges she was molested by , Senior, over a period of years while she was a minor, and that she continues to be affected by the experience as an adult. She testified that she lived with throughout that period prior to attending college; returned to live with them periodically during those years; and currently she lives with her fiancé at her parents’ home. Based on the plaintiff's deposition testimony, is a witness the defendant has the right to depose. He is not permitted to declare he “will not be testifying in this case” as that is not his decision to make. The defendant is permitted to depose him concerning his interactions with the decedent both during the period of alleged abuse and subsequent thereto, as well as his knowledge of the illegal recording. His testimony is reasonably calculated to lead to the discovery of admissible evidence, including the plaintiff's allegations of assault and her damages, and a possible counterclaim based on the illegal recording. Whether Junior is in possession of the illegal recording, is not dispositive of the defendant's right to inquire about the recording, While the plaintiff is a practicing member of the bar, he is not entitled to assert a blanket objection to any conversations he has had He must establish that an attorney-client relationship existed at the time of and with respect to any such conversations. Her testimony raises the issue of his obligations once he learned that his daughter illegally recorded a conversation with the Estate’s representative (her attorney of record has asserted she was unawareof the illegal recording). In any event, the assertion of a privilege, if valid, would be on a question-by-question basis given the scope of possible examination. Conclusion For the reasons set forth herein, the Defendant submits the Motion to Quash be denied. The Defendant, By its Attorneys, dsf Scott J. Tucker Scott J. Tucker - BBO# 503940 Ann M. Donovan - BBO# 552819 Tucker, Dyer & O’Connell, LLP 199 Wells Avenue Newton, MA 02459 SJT - (617) 986-4223 AMD - (617) 986-4205 tucker@tdolaw.com donovan@tdolaw.com Dated: January 22, 2024 1 | CERTIFICATE OF SERVICE I, Scott J. Tucker, hereby certify that on January 22, 2024, I have served a copy of: DEFENDANT'S OPPOSITION TO ARNOLD F. LETT, JR.'S MOTION TO QUASH DEPOSITION SUBPOENA DUCES TECUM by electronic and facsimile only, to the following counsel of record: Kristen Greenwood, Esquire Law Office of Kristen Greenwood, PLLC 349 Old Plymouth Rd., First Floor Sagamore Beach, MA 02562 kristen@attykg.com (F) 508-815-1620 by USPS mail to: Arnold F. Lett, Jr. P.O. Box 105 West Dennis, MA 02670-0105 /sf Scott J. Tucker Scott J. Tucker xhibitA Pages: 1-84 Exhibits: 1-2 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. UPERIOR COURT C.A. NO.: 2272CV00495 JENNIFER DOB, Plaintiéé, ~ Vv. ESTATE OF ARNOLD F. LETT, SR., By its Personal Representatives, Scott Gowen and Alan Ligouri, Deféndant. DEPOSITION OF appearing at Tucker, Dyer & O'Connell, LLP, 199 Wells Avenue, Newton, MA 02459, taken pursuant to Notice under the applicable provisions cf the Massachusetts Rules of Civil Procedure on behalf of the Defendant, before Linda M, Ordway, Professional Court Reporter and Notary Public in and for the Commonwealth of Massachusetts, commencing on Wednesday, November 29, 2023, at 10:06 a.m. SIMONNE J. ELWOOD ~ COURT REPORTERS 117 MENDON ROAD NORTH ATTLEBORO, MA 02760 508-577-1181 FAX 508-761-S677 samjerpr@aol.com APPEARA N c zE s FOR THE PLAINTIFF: Kristen Greenwood, Esquire LAW OFFICE OF KRISTEN GREENWOOD, PLLC 349 Old Plymouth Road, First Fleor Sagamore Beach, MA 02562 508-299-3965 kristen@attykg.com FOR THE DEFENDANT: Scott J. Tucker, Esquire TUCKER, DYER &{ O'CONNELL, LLPw gt 199 Wells Avenue ~_ Newton, MA 02459 617-986-4223 tucker@tdolaw, com 40 occurred on or around May 2, 2022; am I correct? A. Yeah. Q. And the content of that conversation starts after the letter C and continues for one, two, three -- six paragraphs, correct? A. Yep. Q. And your answer includes what Scott Gowen said, what you said, what your mother said, correct? A. I am just going to look at it for a second. 10 Q. Sure, 11 A. Okay, I am ready. 12 Q. When you prepared this answer did you have 13 access to any notes or any other records of what that 14 conversation was? 15 A. Notes or any records? 16 Q. Any records. 17 A. I'm sorry, can you repeat the question. 18 Q. When you prepared this answer to 19 interrogatory thirteen, two, subpart C, about the 20 conversation that you had in person with Scott Gowen 21 and your mother present on May 22, 2022, did you have 22 any notes or any other record or recordings of that 23 conversation? 24 A. I had a recording of the conversation. 61 Q Okay, I’m sorry, you have speak up. Did you say you had a recording of the conversation? A Yeah, I think the audio. Q You had an audio recording of the conversation? A Yeah, my phone was recording out of the camera just so that -- so it was like in my pocket and my phone was recording. 10 Q Was that an iPhone? a1 A Yeah, 12 Q. Do you still have that iPhone? 13 A Yes. 14 Q. Did you start that apuene recording when you 15 started the conversation? 16 A. I don't know. 17 Q. About did you deliberately record that 18 statement, that conversation? 19 A. I did. 20 Q. Do you still have the recording? 21 A. I think, yeah, I think so. 22 Q And that's a recording between you and your 23 mother and Scott Gowen? 24 A Um-um. 62 Qe Yes? A Yep. Q. And did you have Scott Gowen's permission to record that conversation? A. I don't know, Q. I'm sorry? A. I don't know. Qe Do you have any recollection of advising Scott Gowen that you were recording the conversation? 10 A. I don't know, I don't think so. 1k Q. And you had a phone in your pocket the whole 12 time? 13 A Yeah, it was mostly so that I remembered what 14 we were talking about because it's trauma and it's 15 hard. 16 Q. dust so we are clear, you never asked Scott \ 17 Gowen if you had his permission to record that i8 conversation; is that correct? 19 A I don't think so. I didn't even listen to 20 it. It's just what I remember. Writing down my 21 statement, it was really -- like really bad. 22 Q. Did you discuss with anyone your intention to 23 record that statement hefore the meeting? 24 A No. 63 Q. Did you tell your father you were going to do that? A I don't think so. Q Did your father know you were going to record that statement? A. I don't think so. Q. Does your father now know that you recorded that statement? A. Now he knows, yeah. 10 Q. How long has he known that you recorded that il statement? 12 A I think after it happened because I just.. Q And did you listen to that recording before 14 you drafted your answer to interrogatory number 15 thirteen? 16 A I don't think so. 17 Q Have you listened to it since the day you 18 made the recording? 19 A. I don't remember listening to it again. 20 After I didn't want to, it wasn't a great 21 conversation. 22 Q. Has anyone listened to it? 23 A My dad. 24 Q. When did your dad listen to it? 64 A. Probably after it happened. It's easier doing that than telling him what happened. Q Is your dad a lawyer? A Yeah. Q. Was there any discussion with your dad, either before or after you recorded the conversation with Scott Gowen, about Massachusetts law concerning recording somebody's statement without their permission? 10 A. No, I didn't talk about it with my dad a1 before 12 Q That recording is still in your possession? 13 A. It might be. 14 Q. Is it still on your phone? 15 A, I don't think so, I don't think so. It might 16 be somewhere, I don't know. 17 Q I'm sorry? 18 A He might have a record, I dontt know. 19 Q Who may have it? 20 A My dad maybe, but I don't want to speak for 21 him because + I don't know. This is just... 22 Q. You produced as part of your response to 23 request for production of documents, which is No. 2, 24 certain materials as part of Exhibit A; do you see 65 that? A Um-um. Q Do you see Exhibit A starts after the pleading? A Um-um, Q Now, I want to ask you did you sign the document which is the request for production of documents? This is the response but did you see the original request which lists each of the requests 10 here? li A. Yeah. 12 Q Did you seek to obtain any medical or mental 13 health records concerning your treatment prior to the / 14 date that this response was provided? 15 A. The date -- this response was -- did I -~ can 16 you repeat it. 17 Q These requests seek, among other things, your 18 medical and mental health records for various periods 19 of time. 20 My question is: Do you have any of those 21 records in your possession, not here at the 22 deposition, but at home? 23 A. I'm sorry, yeah, I think so. I dontt know, 24 T'm sorry. \ 66 Q Do you have a folder with some of your medical records or a file? A Yeah, for the most part, yeah. Q I'm sorry? A Yeah, just what I save from my appointments and stuff like if they give me papers. Q If you look at number fifteen, which is on page 5 of the request, number fifteen says: All written or audio statements taken from or given by any 10 person which relate to the occurrences and plaintiff's iL alleged injuries and damages resulting therefrom. 12 Did I read that correctly? 13 A. You read it correctly. 14 Q. And the recording of your conversation with 15 Scott Gowen would in fact be an audio statement taken 16 from or given by any person which relates to the 17 occurrences and the plaintiff's alleged injuries and 18 damages resulting therefrom, wouldn't it? 19 A I guess. 20 Q Now, in Exhibit A, I just want to determine 21 when certain things came in to existence. The first 22 document in Exhibit A appears to be a three page 23 document which starts, Dear and 24 ends, Sincerely,