COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

BARNSTABLE, SS. NO: SJC-11009

REGAN McCARTHY

SLADE ASSOCIATES, INC., and V.

CHESTER N. LAY C.A. NO. 2006-672

CONSOLIDATED WITH

REGAN McCARTHY,

SEAMEN'S SAVINGS BANK, and V.

LESTER J. MURPHY C.A. NO. 2 0 0 8 - 0 0 2 7

CONSOLIDATED WITH

REGAN McCARTHY,

CHRISTOPHER SNOW V.

C.R. NO. 2008-0573

On Appeal From An Interlocutory O r d e r Of The Barnstable Superior Court

REPLY BRIEF OF THE PLAINTIFF - APPELLANT REGAN MCCARTHY

Thomas M. Elcock BBO# 548027 Prince Lobe1 Tye LLP 100 Cambridge Street Suite 2200 Boston, MA 02114

telcockeprince1obel.com (617) 456-8155

1297882.1

TABLE OF CONTENTS

I. DEFENDANTS' MISSTATEMENTS AND MISREPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1

11. SLADE, NOT LIPKIND, IS THE INTERVENING CAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

111. DEFENDANTS SEEK A RULE TO WAIVE ATTORNEY-CLIENT PRIVILEGE IN EVERY CASE WHERE THE PLAINTIFF RELIES ON THE UISCOVERY RULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. The Defendants' Argument Is Contrary The Holding In D a r i u s . . . . . . . . . . . . . . . . 13

B . The Defendants Mis-cite D d r i u s ' Holding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4

IV. McCARTHY DID NOT FAIL TO JOIN AN INDISPENSABLE PARTY . . . . . . . . . . . . . . . . . . . . . . . 15

V. THERE HAS BEEN NO WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE . . . . . . . . . . . . . . . . . 15

VI. THE COURT SHOULD REJECT THE DEFENDANTS' CROSS APPEALS AND NOT EXPAND JUDGE MUSE'S ORDER . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

TABLE OF AUTHORITIES --.-.

B a r i u s v. City of Boston, 4 3 3 Mass. 274 (2001) . . . . . . . . . . . . . . . . . . . . . 1 0 , 13, 14, 1 7 , 18

Lama v. I’reskil l , 3 5 3 111. App. 3d 3 0 0 , 818 N.E.2d 443(IL1. App. C t . 2 0 0 4 ) . . . . . . . . . 13, 14

O ‘ M a r a v. H . P . Hood & Sons, 3 5 9 Mass. 2 3 5 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

P y r a m i d Contro ls , Inc . v. Siemens Industrial Automations, I n c . , 176 F . R . D . 2 6 9 (N.D. 111. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discriminat ion, 4 3 2 Mass. 655 ( 2 0 0 0 ) . . . 15 Zora v. State Ethics Coininn., 415 Mass. 6 4 0 (19931 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

OTHER AUTHORITIES

M.G.L.c. 231B S 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5

Masa. R . App. P. 16(j) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Mass. R . Civ. P. 26(b) (3) ...................... 20

1 I. DEFENDANTS' MISSTATEMENTS AND MISREPRESENTATIONS.

The defendants mis-state the record in a

coordinated aLtempt to bolster their cl.aims that there

has been an at issue privilege waiver. These

misrepresentations principally concern f o u r

allegations: (1) McCarthy tcstiiied that "You'1.1 have

to ask my attorney" rather t-han answer deposition

questions relaCed to h e r knowledge of her: title

issues, her claims against Slade or the source of the

sketch she attached to her Land Court Complaint; (2)

This s k e t c h contains information which could only have

been obtained from the Parcel 5 deed description; ( 3 )

The Land Court Complaint cited Parcel 5 as the source

of the title to the land McCarthy acquired in 1990;

( 4 ) McCarthy and B & L did not produce any documents to

Murphy or any regarding Iieatley materials to all

defendants as allegedly ordered by the Court and (5) a

litany of other misrepresentations described below.

Each of these allegations are contrary to the

evidence and afford no basis for Yudge Muse's finding

of an at issue waiver of the attorney client or work

product privileges. McCarthy addresses these mis-

'Pursuant to Mass. R. App. P. 16(j), McCarthy adopts the Reply Brief of B&L and Alan Lipkind.

1355934.1 1

sCatcments bclow and provides citations to her

deposition and the Appendix to substantiate the

defendants' misrepresentations. 2

1. A lynchpin for the dcfendants' justification

fo r seeking a broad invasion of pri.vj1.eges on the

basis of an at issue waiver is the c1ai.m that McCarthy

answered deposition questions by stating: "You'll. have

to a s k my attorney." Seamen's argues "when asked of

her knowledge of her claims againsL Slade prior to the

filing of the land court. action, McCarthy stated

'you'll have to ask my attorney.' A. 795:9-17."

(Seamen's bricf pg. 2 6 . ) Snow's brief (p. 27) makes

the identical argument: Slade's brief argucs on page

33:

McCarthy has refused to answer questions regarding knowledge of the title issue j .n connection w i t h filing the Land Court Action, answering, "you'll have to ask my attorney." A.795.

The defendants' mis-casting of McCarthy's

deposition testimony relies 0"ly on the oral argument

of Slade's counsel during the July 13 motion hearing.

*Only 8 pages of excerpts from McCarthy's deposition are contained in the Appendix. (A. 458-65.) In order for the Court to verify the accuracy of McCarthy's Reply Brief (and the inaccuracies in the defendants' briefs), McCarthy has moved to supplement the appendix by adding her deposition testimony to the record.

1355934.1 2

(See A. 7 9 5 . ) T h e d e f e n d a n t s n e v e r c i t e where McCarthy

a c t u a l l y yave such t e s t i m o n y b e c a u s e s h e n e v e r gave

s u c h t e s t i m o n y .

The d e f e n d a n t s e r r o n e o u s l y a r g u e t h a t McCarthy

" r e f u s e d t o answer q u e s t i o n s " r c y a r d i n g h e r knowledge

of t i t l e i s s u e s and h e r claims aga ins t : S l a d e . Y e t i n

h e r d e p o s i t i o n , McCarthy unambiguously answered a l l

q u e s t i o n s c o n c e r n i n g h e r knowledge of t h e s e m a t t e r s a t

t h e t i m e t h e L a n d Court: a c t i o n commenced and a f t e r .

She d e f i n i t i v e l y responded "No" when a s k e d i f , p r i o r

t o f i l i n g t h e V e r i f i e d Complaint , anyone had a t any

t i m e t o l d h e r t h a t Parcel 2 d i d not a b u t Mcllermott and

whether s h e had r eached t h i s c o n c l u s i o n h e r s e l f .

(McCarthy Depo. V o l . 11, pgs. 240-41.) McCarthy

u n e q u i v o c a l l y t e s t i f i e d t h a t s h e discovered t h i s

d e f e c t " th rough t h e t i t l e e x a m i n a t i o n of [McDermotts'

c o u n s e l ] s u b m i t t e d t o Land C o u r t [on ] J a n u a r y 26,

2005." (McCarthy Depo. V o l . I , pg. 224, see also V o l .

I1 pg. 6 4 . ) She m a i n t a i n e d t h i s p o s i t i o n - t h a t s h e

believed Parcel 2 a b u t t e d McDerrnott - i n answers t o

more t h a n 20 a d d i t i o n a l d e p o s i t i o n q u e s t i o n s .

(McCarthy Depo. V o l . I , pp. 26, 47, 136, 224, 227,

229; Vol. 11, pp. 58, 59, GO, 64, 125, 137, 163, 164,

165, 1 7 1 , 203, 214, 218, 238, 239 and 241. ) The

1355934.1 3

defendants' arguments that McCarthy refused to answer

such questions and instead directed them to ask her

Land Court lawyer are yruundless. 3

2. The defendants argue that the sketch attached

to McCarthy's Veri fied Complaint contained information

"such as the Proprietors road and Rich land." that she

could only have discovered through reading the deed

description of Parcel 5 prior to fili.ng the Verified

Complaint. (See snow's brief pg. 9; Seamen's brief pg.

14.) Their arguments ignore McCarthy's deposition

testimony that she read the deed at Book 314, Page 45

up to the point that established the source for Parcel

2 and, having j.dentj.fied the title SoUfcC for her

deed, did not need to r e n d further. (See McCarthy

Depo. Vol. I pp 182-185.) Their arguments a l s o ignore

evidence produced to them in discovery that s h o w s

McCarthy received information about the Proprietor's

Road on and bcfore September 30, 2004 from the Town of

Truro and from a federal land officer. Likewise, the

Rich lands are cited in deeds that McCarthy reviewed

prior to filing the Verified Complaint. (See McCarthy

McCarthy did answer a single and entirely different question during her deposition concerning preparation of the Land Court Complaint by referring to Attorney Lipkind, an entirely appropriate response given the question. (McCarthy Depo. Vol. 11, pg. 219 . )

1355934.1 4

Dcpo. V o l . I pgs 229, 230 and McCarthy's response to

Slado's RPD 16.)4

3 . The defendants inaccurately assert that in her

I,and Court Complaint McCarthy cites Parcel. 5 a s the

source of her title to the land she acquired in 1990.

They argue that paragraph 10, which cites Parcel 5 in

the chain of title for McDermott, shows 0&L must have

known by October 2004 Lhat Parcel 2 was not at locus.

(Snow brief pgs. 3 , 8 and 37; Slade brief pgs. 6-8:

and Seamen's brief pg. 14.) Yet paragraph 4 of the

Land CourL Complaint unequivocally states that t h rough

the deed "in Book 7214, Page 322" (i.e. in the chain

of tifle for Parcel. 2 ) McCarthy 'obkained title to a

parcel of land of f Hiqqins Hollow Road and Old Kings

Highway in Truro, known as 35 A Higgins Hollow Road."

(A. 140.) This address abuts McDermott at 35 Higgins

Hollow Rd. McCarthy's Complaint claims title o n l y

through Parcel 2, placing it next to McDermotts' east

by address and Assessor Maps.

The defendants also argue that McCarthy created her sketch and the information on it absent surveyor's input. (Slade pg. 6; Seamen's pg. 14; Snow pg. 9) This contradicts al; least 6 instances in her deposition testimony that establish the source of her sketch was Slade's 1984-5 hand drawn sketch, which she simply traced. (McCarthy Depo. V o l . I, pgs . 7 5 , 78; Vol. I1 pgs. 37, 48, 190, and 2 4 5 . )

1355934.1 5

Additionally, the defendant.^ take paragraph 10 of

thc Land C o u r t complaint out of context. This review

o f McDermott's chain of tiClc arose from the question

of whether McDermott's land was the western abutter to

McCarthy's Parcel 2, not from any hidden concern that

Parcel 2 was no t actuaIly next to McDermott. Furthcr,

the defendants ignorc McCarthy's deposition testimony

that at the time 01 her Land C o u r t Complaint, the only

depiction she had of the cntirety of Parcel 2 , i . e . ,

showing both her portion and the portion conveyed to

the USA in the 1960s when the National. Seashore was

created, were the Seashorc Tract Map 203.-17 prepared

by Wilfred Slade and a hand drawn sketch prepared by

Slade in 1984-5, both of which propound her parcel

abuts McDermott. The 1984-5 sketch cites distances for

the northern and western bounds of McDermotts' eastern

abutter as 30 rods and 27 rods, suggesting that Slade

concluded that Parcel 2 was embedded in or contiguous

to a parcel of 30 rods by 27 rods (which correspond to

the distances cited in Parcel 5, though no specific

reference to Parcel. 5 is noted on Slade's sketch).

(McCarthy Depo Vol. 11, pq. 221-23) Chester Lay, of

Slade, agreed with this contention during his

deposition. (C. Lay, Depo. Vol 4, pg. 132.) This

e x p l a i n s why Paragraph 10 r e f e r e n c e s t h e " p r o p e r t y

forming t h e e a s t e r n boundary o f t h c R i c h P a r c e l , a

p o r t i o n of which i s n o w t h e McCarthy P a r c e l " - riot

because McCarthy c l a i m s t i t l e from P a r c e l 5 ( s h e docs

n o t ) b u t because t h e e a s t e r n boundary of R i c h a s

d e p i c t e d by SI.ade s h a r e s a p o r t i o n of i t s e a s t e r n

boundary w i t h P a r c e l 2 . ( A . 4 4 6 - 4 7 . )

4 . Defendant Murphy s t a t e s t h a t B&L produced no

documents c o n c e r n i n g t h e Land Cour t m a t t e r . (Murphy

B r i e f pg. 4 . ) T h i s is p a t e n t l y f a l s e . B&L, t h rough i t s

c o u n s c l , S h e r i n and Lodgen, made more t h a n 1 7 , 0 0 0

pages of n o n - p r i v i l e g e d documents and pl .ans conce rn iny

t h e Land Cour t a c t i o n a v a i - l a b l e t o t h e defendant -s f o r

v iewing and copyiny y e t Murphy's c o u n s e l neve r a v a i l e d

h i m s e l f of t h e o p p o r t u n i t y t o review t h e s e documents.

5 . O the r MisstatemenLs: T h e Defendants a l s o

a l l e g e t h a t McCarthy r e f u s e d t o p r o v i d e a pri .vi1.ege

log . ( S l a d e , p 2 9 ) S l a d e made t h i s r e q u e s t w e l l a f t e r

t h e c l o s e o f d i s c o v e r y and McCarthy was under no

o b l i g a t i o n t o produce a p r i v i l e g e l o g f o r S l a d e as a

r e s u l t . Snow a l l e g e s t h a t B&L l i k e w i s e ' r e f u s e d t o

produce a p r i v i l e g e log" (Snow b r i e f , pg 1 3 ) . h a i l s

between B & L ' s c o u n s e l and Snow's c o u n s e l show t h a t B&L

twice o f f e r e d t o p r e p a r e such a Log p rov ided t h e

1355934.1 7

d e f e n d a n t s would c o v e r t h e e x t e n s i v e "fees and c o s t s

o f t h e p r e p a r a t i o n " of t h i s l o g f o r a c a s e of seven

y e a r s d u r a t i o n . (A . 638 and 641).

I n regard t o H e a t l e y , t h e d e f e n d a n t s a rgue t h a t

Judge Muse o r d e r e d H e a t l e y ' s t i t l e examina t ion t.o be

produced. (Snow B r i e f pg. 1 6 , Sl.ade pg. 38, Seamen's pg.

33) On t h e c o n t r a r y , Judge Muse d i d n o t o r d e r a

p i e r c i n g of t.he work p r o d u c t p r i v i l e q e w i t h r e g a r d t o

H c a t l e y . Judge Muse o r d e r e d o n l y t h a t B&L

shall f u r t h e r review and r e s u b m i t t o t h e d e f e n d a n t s t h e b i l l i n g r e c o r d s r e l a t i n y t o J a n e Mi.tchel1, and h e r f i r m ' s t i t l e examina t ion , r e d a c t i . n g o n l y t h a t i n f o r m a t i o n whi.ch might c o n s t i t u t e i m p r e s s i o n s o r o t h e r cognizab1,e work p r o d u c t c l a i m s . They s h a l l s u b m i t t o t h e c o u r t a complete u n r e d a c t e d copy of t h e same,..

(Addendum 2. )

The Cour t c l e a r l y i n t e n d s t o preserve work

p r o d u c t pr ivj .J .ege and t o t h a t end h a s o r d e r e d o n l y t h c

product ion of a s i n g l e document - B & L ' s b i l l i n g

r e c o r d s r e l a t i n g t o H e a t l e y and h e r t i t l e work. T h e

C o u r t ' s o r d e r t h a t an unredac ted copy of t h e same

s h a l l be s u b m i t t e d t o t h e C o u r t con f i rms t h a t B&L was

t o produce only one document t o t h e d e f e n d a n t s : B & L ' s

r e d a c t e d b i l l i n g r e c o r d s . (Addendum 2 . )

I n denying t h e d e f e n d a n t s R u l e 1 2 ( b ) mot ions t o

d i s m i s s , t h e motion judge , Rufo, J., d i d n o t r u l e t h a t

1355934.1 8

the defendants wcrc entitled to obtain privileged

attorney-client communications or attorney work

product to determine whether McCarthy's cl.aims were

barred by the statute of limitatjons. ( S e e Snow brief

pg. 11.; Seamen's brief pg. 24 and compare to A. 6 4 8 . )

The issue of whether there had been an at issue waiver

of privilege was n o t raised j,n the defendants' Ku1.e

12(b) motions and none o f the defendants argued t-o

Judge Muse that Judye Rufo's decision denying their

12(b) motions contained such an order. At most, Judge

Rufo recognized that, the i.ssue of when McCarthy's

cause of action accrued might arise during discovery.

Hy consistently misstating the facts, thc

defendants undermi.ne t . h e j r own credibility and make

obvious that their only target - and defense - i n this

matter is B&L and Attorney Lipkind, and they have no

real interest in probing the information available to

them already produced in discovery. The defendants'

misrepresentations underscore the dearth of their

efforts to review and analyze the vast production

provided to them by Mccarthy and BLL; to depose

relevant parties; and to proceed with discovery in

this matter in good faith. Simply put, the defendants

1355934.1 9

have barely tapped and hardly exhausted their non-

privileged sources of information, per D a r i u s .

XI. SLADE, NOT LIPKIND, IS THE INTERVENING CAUSE.

An underlyiny premise of the defendants'

arguments on appeal and in the Court below i s that

Lipkind is an intervening cause based upon their

presumption that he knew prior to filing the Land

Court case that Parcel 5, and not Parcel 2, abutted

McDermott. The defendants press this case for an at

j.ssue waiver in order to pierce both Lipkind's and

McCarthy's pri.vj.leqes and protections, in Slade' s case

to establish damages and potent i .a l . counterclaims, and

in the case of a11 dcferidants to establish their

statute of limitations affirmative defense.

Yet the f i r s t and the last parties to assert that

Parcel 2 abutted McDermott (when they knew it did not)

are McCarthy's land surveyor, Slade, and its

princi.pa1.s Chester and Richard Lay. In 1995 and again

in 2003, Chester Lay, on behalf of Slade, surveyed

Parcel 2 for McCarthy and located it off Higgins

Hollow Road on McDermotts' east. However, as early as

1984, Richard Lay prepared a plan that he admits

placed Parcel 5 there and memorialized this plan as

1355'334.1 10

S l a d e ’ s 1989 Study Ske tch , used i n a n u n r e l . a t e d Land

Cour t case (where d e f e n d a n t Murphy was c o u n s e l ) .

McCarthy a l l e q e s t h a t C h e s t e r Lay and S l a d e knew

t h a t P a r c e l 5 a b u t t e d McDermott a s e a r l y as 1 9 8 9 . In

any evcnt, C h e s t c r admiis in answers to McCarthy‘s

i n t c r r o g a t o r i c s 1 7 and 38 t h a t he knew t h i s f a c t by a t

l e a s t November 2 0 0 4 . That same month, several w e e k s

a f t e r t h e r a n d C o u r t c a s e was f i l . e d , C h e s t e r Lay m e t

w i t h L ipk ind t o d i s c u s s h i s views on t h e case y e t he

never t o l d L i p k i n d t h a t P a r c e l 5 was t h e p a r c e l

a b u t t i n g McDermott. I n December 2 0 0 4 , C h e s t e r Lay

s u b m i t t e d a stamped and s e a l e d pl.an t o t h e ].,and C o u r t

showing Parccl 2 a b u t t i r i y M c D e r m o t t a s 211 e x h i b i t t o

hj-s a f f i d a v i t , and r e i t e r a t e d t h i s o p i n i o n j.n a

J a n u a r y 5, 2005 communication w i t h McDerrnotts’ c o u n s e l

b a s e d on h i s p r io r “ e x t e n s i v e survey”. Thus, a f t e r t h e

Land C o u r t a c t i o n was commcnced, C h e s t e r Lay on b e h a l f

o f S l a d e a l s o made f a l s e s t a t emen t s t o t h e Land Cour t

and t o h i s new c l i e n t s ( t h e McDerrnotts) t h a t Parcel 2

abu t t ed McDermott. For S l a d e and t h e o t h e r defendants

t o a s s e r t t h a t L i p k i n d s h o u l d know what McCarthy’s

s u r v e y o r d e l i b e r a t e l y w i t h h e l d from him, and t h a t

L ipk ind i s a n i n t e x v e n i n g cause i s b o t h preposterous

and i n s u p p o r t a b l e .

1355934.1 11

Addit-ionally, Slade is the iriterveniny causc

because it produced every survey and plan upon which

McCarthy as well LIS the other defendants relied.

Indeed, Slade is the source of every plan locating

Parcel 2 ncxt t o McDcrmott produced from 1978 up to

January 2005. Notably, Slade's 2909 Study Sketch,

which was not produced to McCarthy until 2006, placed

Parcel 5 abutting McDermott. Y e t , all oLher plans and

opinions of Slade - including numerous public records

- depicted Parcel 2 abutting McDermott from 1970 to 2005, contrary to their actual knowledge that Parcel 5

is the true abutter to McDcrmotC. 5

Richard Lay produced a comprehensive Study Sketch of 5

the Hiygins €10110~ area of Truro in 1989 that placed Parcel 5 abutting McDermott. (Notably, Murphy was counsel on this case and also had this plan in his possession). This Study Sketch contradicts the location o f Parcel 2 as the parcel abutting the McDermotts on every other plan prepared by SLade including: the Truro Assessors Atlas produced by Slade annually from 1978-2008; recorded plan for a parcel on the north side of Higgins Hollow Road prepared in 1984; a 1984-85 hand drawn sketch which Slade gave to Rogers (the title Examiner) in 1990 and which Rogers gave to Snow ( 1 9 9 0 ) , Murphy ( 2 0 0 3 ) , and Lipkind (2004); Slade's various plans o f access to Parcel 2 created for McCarthy; a stamped and recorded plan which Slade prepared for McCarthy's southern abutter in 2000; the stamped 1995 McCarthy Working plan which Chester Lay submitted to the Land Court in 2004 and the National Seashore Tract Maps produced by Wilfred Slade: and many other plans f o r land in this area. In denyi.ng Seamen's Motion to Dismiss, Judge Rufo noted that the Slade survey reviewed by Lipkind

1355934.1 12

III. DEFENDANTS SEEK A RULE TO WAIVE ATTORNEY-CLIENT PRIVILEGE IN EVERY CASE WHERe THE PLAINTIFF RELIES ON THE DISCOVERY RULE.

A. The Defendants' Argument Is Contrary The Holding In Darius.

The d c f c n d a n t s a r g u e t h a t Judyu Muse p r o p e r l y

found an at issue waiver because McCarthy relies on

the discovery rule to toll the statute of limitations.

(Snow brief pg. 2 3 , Seamen's brief pgs. 18-3.3, Murphy

bricf pgs. 15-22.) In essence, the defendants advocate

that this Court adopt a r u l c that the attorney-client

privilege is waived i .n every case were the statute of

limitations is pled as an affirmative defense and a

client relies in the discovery rule to overcome the

limitations period. (See id.) To support h j . s sweeping

argument, Snow does n o t cjte Massachusetts %aw.

Rather, he relies on Pyramid Controls, Inc . v. Siemens

Industrial Automat ions , I n c . , 116 F. R . D. 269, 214

(N.D. Ill. 1997) and Lama v. Preskj.11, 3 5 3 111.. App.

3d 300, 818 N.E.2d 113 (111. App. Ct. 2004). (Snow

brief page 24-25.) In doing so, Snow ignores that the

majority's opinion in Lama, which relies on Pyramid

Controls, is directly contrary to the holding in

misrepresented the location of her property and made the facts 'inherently unknowable."(A. 684) .

13 1355934.1

D a r i u s , a point succinctly made in the di.ssentj.ng

opinion. Seo Lama v. Presk i .11 , 818 N . E . 2 d at. 452.

B. The Defendants Mis-cite Daxius' Holding.

The defendants mis-state the holding in D a r i u s v.

C i t y of Boston , 433 Mass. 274 (2001)(Snow brief pgs.

29-30; Seamen's brief pg. 21 and Murphy brief p. 7)

and argue that D a r i u s supports Judge Muse's decision.

It does not.

In D a r i u s , the Court recognized the concept of an

at issue waiver, but nevertheless denied the

defendant's request for the privileged information

holding that where a defendant asserts a statute of

limitations dcfcrise and the plaintiff reli.es on the

discovery rule, the defendant may not, based solely on

the plai,ntiff's invocation of the discovery rule,

probe the plaintiff's attorney-client re1,atjonship to

determi.ne whether the plaintiff may have revealed

something to her attorney that might be helpful to the

defendant's case. 433 Mass. at 282. To adopt the broad

discovery sought by the defendants would effectively

swallow the privilege, rendering it useless even

though, as here, the privilege-holder never directly

put the privileged communications at issue.

1355934.1 14

IV. McCARTHY DID NOT FAIL TO JOIN AN INDISPENSABLE PARTY.

Citing the Contribution Among Joint Tortfeasors

Act, G.L. c. 2318, Murphy argues he is entitled to

discovery o f B & l . ' s privileged communications with

McCarthy and i . t s own work product because Lipkind and

B&L are indispensable parties. (Murphy brief pqs. 28-

31.) This issue was never raised in the Superior Court

and i .s wai.ved. Wynn & Wynn, P.C. v . Massachusc t - t s

Commn. A g a i n s t I l i scr iminat ion , 431 Mass. 655, 674

(2000)(issue not raised below is waived on appeal.)

In any event, there is no mcrit to Murphy's

argument. The Contribution Among Tortfeasors Act

describes the circumstances that give rise to rights

of contribution among joint tortfeasocs. See O'Masa v.

1 I . P . Hood 6 Sons, 359 Mass. 235, 237 (1971). Chapter

2 3 1 B does not require that McCarthy name Lipkind or

B&L as defendants to perfect a contribution claim that

Murphy may have against thcm, which, in any event he

does not.

V. THERE HAS BEEN NO WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE.

Lipkind did not waive the attorney-client

privilege by answering one question before his counsel

objected. (Snow brief pgs. 42-43.) During his

1355Y34.l 15

deposition, Lipkind‘s counsel repeatedly objected and

inst.ructed Lipkind not to answer any questions that

called for the disclosure of pri.vi 1 eged i-nformation.

(A. 240-2YY.) When Lipkind was asked “On or about

January 25, 2 0 0 [ 5 ] , did you know that Reqan McCarthy’s

land did not abut the McDcrmott land?“, Li.pkind

answered “No.” (A. 294) Simultaneous w i t h or

immediately after Lipkind answered, his counsel

objected and instructed Lipkind not to answer. (Id.)

All parti.es proceeded understanding that privilege had

not been waived. l ’ h j s i s confirmed by Slade’s later

molion to cumpel answers to questions 1,i.pkind was

instructed not to answer, which specifically included

the same question that Seamen’s now argues that

Lipkind answered and waived privil.ege. (A. 236.)

Defendants never raised this argument in the Superior

C o u r t and the appellate argument asserting this point

has been waived.

VI. THE COURT SHOULD REJECT THE DEFENDANTS‘ CROSS APPEALS AND NOT EXPAND JUDGE MUSE’S ORDER.

The defendants cross-appeal the August 24 Order

arguing Judge Muse erred by finding only a limited

waiver of privilege. They seek a wholesale invasion of

the attorney client privilege and Lipkind‘s work

1355934.1 16

product. privilegc. (Snow brief pgs . 42-19; Seamen's

pgs. 44-49.) These cross-appeals should be rejected

because they do not rise to the level of appellate

argument where both Snow and Seamen's do not cite any

case law or authority to support their arguments that

Judge Muse's order is too narruw. See Zora v. S t a t e

E t h i c s Commn., 415 Mass. 640, 642 n. 3 (1993)

(assertions of error, 1.acking legal argument and

authori.ty, do not rise to the level of appellate

argument).

In any event, the scope of the waiver found by

Judge Muse should not be expanded. Judge Muse found

that the defendants established a limited at issue

waiver consistent with D a r i u s . (Addendum pg. 2 . ) The

defendants' cross appeals seek all documents from B&L

concerning its representation of McCarthy and seek

unrestrained access to privileged communications

between Lipkind and McCarLhy, who, contrary to

Murphy's brief, is still hi.s current client in a

pending Land Court action. (Snow brief pgs. 18, 42-44

and Seamen's brief pgs. 17, 45-46.)

The relief sought by the defendants is contrary

to D a r i u s where it was recognized that "[aln 'at

issue' waiver, in circumstances where it is

1355934.1 17

recognized, should not be tant.amount t o a blanket

waiver of the entire attorney-client privilege in the

case.” 433 Mass. at. 2 8 3 . Further, an at issue waiver

is “ [ b l y definition, ... a limited waiver uf the

privilege” and that courts should ”carefully craft [ I

their orders so as to limit the permissible discovery

to what is truly ‘at issue‘.” Id. To the extent the

August 24 Order is not vacated as argued by McCarthy,

the Order, at a minimum, should not be expanded

because it is consistent with D a r i u s .

Snow and Seamen‘s argue Judge Muse improperly

limited thc questions that Lipkind arid B&L were

ordered to answer and that f,ipkj.nd should also be

required to answer their questions. (Snow brief pgs.

44-40: Seamen’s brief pgs. 46-49.) In its August 24,

2010 Order, Judge Muse found that the questions

proposed by the defendants overlap. (Addendum pg. 2.)

On appeal Snow and Seamen‘s conceded there is “some

overlap“ in the two sets of questions. (Snow brief pg.

44, Seamen‘s brief pg. 41.) Snow and Seamen‘s appeals

do not credibly challenge Judge Muse‘s finding that

the question proposed by Slade and Lay are the “most

appropriate“ and “comprehensive. “ (Addendum, pg. 2. )

1355934.1 18

The defendants principally assert that Attorney

Lipkind should be compelled to answer their questions

bccausc "McCarthy has invoked the discovery rule as to

Seamen's Bank, Snow and Murphy, but has not as to

Slade and Lay." (Seamen's brief pq. 48, Snow brief at

pg. 45.) This is inaccurate. In bri.ngj.ng this action

a g a i n s t Slade in 2006, McCarthy invokes the discovery

rule with respect to Slade and Lay's 1995 s u r v e y work.

:In addition, the defendants argue that the

questions they propose are "broader" than the

questions proposed by Slade. (See Snow brief pg. 45-

46; Seamen's brief 4--7-48. ) :In entering his Order,

Judge Muse permitted only a "discrete piercing of

privileyes". (Addendum 2.) The cross appea1.s seek a

substantially broader waiver of privilege than ordered

by Judge Muse, and one that is so broad it shatters

every protection of privilege afforded to McCarthy and

her counsel. Their argument: should be rejected.

H o w e v e r , if the court determines that Lipkind and

B & L should answer some of the questions posed by the

defendants, in no event should Attorney Lipkind or B&L

be required to answer any written question that would

require Lipkind to disclose his mental impressions,

conclusions, opinions, legal theories or those of his

1 9 1355934. I

agenLs. See Mass. R. Civ. P. 2 6 ( b ) ( 3 ) ("Zn ordering

discovery of [work product] materials when the

required showing has been made, the court s h a l l

protect against the disclosure of t h e mental

impressions, conclusions, opinions, or legal theories

of an attorney or other representative of a party

concerning the litigation.")

CONCLUSION

McCarthy requests this Court: (1) vacate the

August 24, 2010 Order; (2) reject Defendants' cross-

appeals and ( 3 ) direct thc Superior Court to enter

orders denying the defendants' motions seeking

discovery of privileged information.

Respectfully Submitted,

Regan McCarthy, ww T omas M. Elcock, BBO # 5 1 8 0 2 7 Prince, Lobel & Tye, LLP 100 Cambridge St., Suite 2200 Boston, MA 023,14 telcock@princelobel.com

July 6, 2011

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