Bracho v. Kent School

Filing 150

ORDER. The Court received the attached correspondence outlining three discovery disputes. After reviewing the parties' correspondence and supplemental materials submitted by the parties (also attached) and after discussing the d isputes with the parties on the record during a telephonic conference today, the Court issues the following orders: (1) The deposition of Danilo Bracho is reopened for 30 minutes and he may be asked about the surveillance video, including whe ther he reviewed it. (2) The deposition of David Bracho will not be reopened, given plaintiff counsel's representation that he will not seek to elicit evidence from David Bracho regarding the plaintiff's ability to satisfy the capital r equirements of the EB-5 visa program, including evidence concerning family finances or the family-owned or directed company.(3) Doctor Jupiter will not be deposed based on the plaintiff's representation that he will not call Dr. Jupiter as a witness. In addition, for the reasons stated on the call, the Court amends its previous scheduling orders and issues the following deadlines: Jury selection shall begin on July 7, 2021 with evidence to begin the following day or, if the currently scheduled criminal trial has not resolved, within approximately one week of jury selection. The parties shall file the Joint Trial Memorandum by June 7, 2021. Motions in limine shall be filed at the same time as the Joint Trial Memorandum; responses are due within 14 days; no replies are permitted. The Court will hold a pretrial conference on June 24, 2021 at 10:00am. Signed by Judge Michael P. Shea on 11/18/2020. (Attachments: # 1 Dispute Letter, # 2 Supp. Dispute Letter, # 3 Supp. Dispute Letter, # 4 Exhibit, # 5 Excerpt, # 6 Excerpt, # 7 Excerpt, # 8 Excerpt, # 9 Excerpt)(Gait, Emily)

Case 3:18-cv-00021-MPS Document 150 Filed 11/18/20 Page 1 of 2

November 6, 2020
Amy Constantine
Law Clerk to Judge Michael P. Shea
Email: [e-mail]
Re: Bracho v. Kent School Corporation, 18 cv 0021 (MPS)
Dear Judge Shea:
This letter is pursuant to the Court’s Instructions for Discovery Disputes. Three discovery
disputes are before the Court.
First, the defendant wants to continue the already once continued depositions of the
plaintiff Danilo Bracho and Danilo’s brother David Bracho in order to ask them more questions
about the illegally obtained surveillance video of the plaintiff. 1 The Court should deny this request
for several reasons. First, in fact, at David’s deposition the defendant’s counsel showed portions
of the videos, asked the witness many questions about them, and adjourned the deposition
without making or preserving or even mentioning any objections or complaints about the
witness’s answers or the scope of the examination. Second, the defendant’s counsel could
similarly have shown the video to Danilo and could have asked him any questions he wanted, but
he failed to do either of these things. Instead, counsel asked only whether Danilo reviewed the
video prior to the deposition, plaintiff’s counsel objected on attorney-client and work product
grounds to the extent that the answer would reveal what Danilo’s counsel instructed him to review
and any other legal advice given when preparing for the deposition, and defendant’s counsel
moved on to other topics. 2 Nothing prevented defendant’s counsel from doing what he wants to
do now; he simply chose not to do it, and he adjourned. The deposition ended this way:
MR. PITBLADO: I guess it's – given that it's time to start David's deposition and that you
refuse to answer my questions about what you reviewed in preparation for your deposition,

1

Since the Court first addressed the questionable legality and possible inadmissibility of the
defendant’s secret surveillance video, David Bracho testified that, contrary to the Affidavit filed by
the defendant in support of its surveillance, portions of it were filmed on private property –
Danilo’s high school. Portions also contain footage of underage girls, Danilo’s and David’s
mother, their mother’s friends, and other private parties, none of whom were notified that they
were being filmed and none of whom gave permission for such filming.
2
See Sporck v. Peil, 759 F. 2d 312 (2d Cir. 1986) (the selection and compilation of documents by
counsel for litigation purposes is protected opinion work product); 7 Moore’s Federal Practice –
Civil Sec. 30.42[1][b] (A request for such materials encroaches on the work-product doctrine if the
witness is asked what documents were given to him by counsel for review before the deposition,
because the answer could reveal the thought process or opinion of counsel as to which
documents counsel considered important).

Case 3:18-cv-00021-MPS Document 150 Filed 11/18/20 Page 2 of 2

we'll keep it open and take it up with the Court, I guess, Antonio; is that right?
MR. PONVERT: Yes. But just for that topic if the judge were to overrule my objection. If
you want to use up your other time I think now is the time to do it.
Danilo Bracho September 22, 2020 Deposition at 128-129.
Second, the defendant wants to continue David Bracho’s deposition (again) to ask him
more questions about David’s company, Bancasa AG, in order to discover whether Danilo (who
sits on the board of the company) will be able to qualify for an EB-5 investor visa to obtain
residency in the United States (an issue relevant to the amount of lost future earnings and costs
of care). But defense counsel already asked pages and pages of questions about David’s
company (many of which pushed the limits of relevancy or were totally improper), and the witness
answered them. Plaintiff’s counsel objected when defendant’s counsel asked questions about
unrelated companies owned by third parties with whom David’s company may or may not do
business. For example, “MR. PITBLADO: No. I just want to know if Bancasa AG, on which Danilo
sits on the board, does business with Banco de Venezuela or Banco Bicentenario. That's it.”
(David Bracho September 22, 2020 Deposition at 57), and “Q. So does the income come from
your father then? You said it's from the family. Does that mean it comes from your father? How
do you make an income?”. Id. at 52. In any event, defendant’s counsel adjourned the deposition
without making or preserving or even mentioning any objections or complaints about David’s
answers about his company or the scope of the examination concerning his company.
Third, defendant’s counsel wants to depose a treating Mass General surgeon about the
surveillance video long after the close of discovery, and more than a year after the treater’s
records were produced and the surveillance video taken. As a courtesy, plaintiff’s counsel
agreed to the defendant taking the deposition after the deadline, but only because Mr. Pitblado
wrote in an email that he needed time “to review his file”, not to allow questioning about
surveillance the plaintiffs had already argued was illegally obtained and should not be used for
any purpose. The defendant should not be allowed to subpoena a treating physician and force
him to give testimony after the deadline has passed and with no good cause why the deposition
could not have been taken on time.
The defendant has shown no good cause for its requests to engage in yet more discovery
long after the Court-imposed deadlines have passed. Re-opening discovery now would be
unduly prejudicial, would waste time and resources, would delay the proceedings, and would not
be consistent with the just, speedy and inexpensive resolution of this case.
I certify that I have complied with the good faith conference obligations under the Federal
Rules and Local Rules.
Respectfully submitted,
Antonio Ponvert III
APIII:sc
cc: John Pitblado, Esq.