Merrifield v. Gussman et al

Filing 153

Judge Rya W. Zobel: ORDER entered. (Gioia, AnaMaria)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 17-10679-RWZ

THOMAS MERRIFIELD
v.
ROBERT GUSSMAN, et al.

ORDER
November 6, 2017

ZOBEL, S.D.J.
Pending before me are a number of outstanding discovery motions (Docket ##
28, 59, 60, 61, 72, 87, 135, and 147). In essence, plaintiff seeks to discover
information from 2011 to the present and to attach additional assessments up to
$5,000,000. Defendants contend that discovery should be limited to 2014 and
separately move for protective orders concerning various subpoenas duces tecum.
I.

Analysis
A.

Attachment of Additional Assets

One day after this case was filed, plaintiff filed an ex-parte motion for
prejudgment attachment. Docket # 7. On May 5, 2017, “[i]n light of the facts alleged in
his Verified Complaint, and further stated in his motion,” I allowed plaintiff’s ex-parte
motion for prejudgment attachment “in an amount of no more than $1.3 million.”1

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I now clarify and am end m y earlier order, consistent with Massachusetts Rule of Civil
Procedure 4.1, and state that plaintiff has shown that there is a reasonable likelihood that he will recover
judgm ent in an am ount equal to or greater than $1.3 m illion. See Mass. R. Civ. P. 4.1.

Docket # 10. Plaintiff subsequently moved to attach additional assets because he
maintains that “he is reasonably likely to recover a judgment against Defendants in
excess of $5 million.” Docket # 28, at 3. I ordered plaintiff to submit supplemental
evidence in support of his claim, and “to provide specific amounts of tangible losses,
such as medical bills, cost of services occasioned by and required as a result of
defendants’ conduct, and loss of income.” Docket # 93. Plaintiff provided an itemized
list of his medical expenses as of August 15, 2014, which totaled $368,425.47.2
Defendant Gussman contends that “the medical bills causally connected to the assault
total approximately $52,000,” Docket # 150, at 5, and denotes these expenses. See
Docket # 150-1. Even accepting plaintiff’s expenses in full, he has not shown there is a
reasonable likelihood that he would recover judgment in an amount equal to or greater
than the amount of $5 million. Accordingly, I decline to allow attachment of additional
assets.
B.

Discovery Time Period

Plaintiff argues that discovery from 2011 through the present is necessary to
demonstrate that the alleged conspiracy “was hatched long before 2013, and continued
long after Mr. Merrifield was attacked,” on August 15, 2014. Docket # 147, at 2. I
disagree. The discovery shall be limited to the period of January 1, 2014 through
August 31, 2015.

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Plaintiff also argues that defendants “want to continue to m ove m illions of dollars from
one location to the next, with the hope that when judgm ent day com es, everything besides Gussm an’s
condo will be gone,” Docket # 145, at 10. In support, plaintiff notes that “[b]ank records show transfers of
m illions of dollars in 2015 alone, to m ultiple accounts at m ultiple banks, including several trusts believed to
be controlled by Gussm an.” Id. at 7. But this argum ent is not persuasive as defendant’s alleged transfer
of m onies occurred nearly two years prior to plaintiff filing this com plaint and seeking attachm ent of
assets.

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Plaintiff’s claims against defendants are centrally based on the following
allegations, all of which occurred in 2014:
!

“Gussman concocted a plan to hire a hit-man to attack and seriously
injure or kill Mr. Merrifield.” Docket # 1 (“Verified Complaint”), at ¶ 44;

!

“Gussman met with Tracey Valentine, and Reardon. They agreed with
Gussman’s plan to hire a hit-man to attack Mr. Merrifield at his home in
Douglasville, Georgia.” Id. at ¶ 45;

!

“[In late July 2014,] Dearth was in Florida when Reardon called to discuss
Gussman’s plan.” Id. at ¶ 49;

!

“Dearth wanted the money, so he agreed to the job and flew back to
Boston. Reardon picked him up at the airport in the rental car they would
later drive from Massachusetts to Georgia to carry out Gussman’s plan for
revenge.” Id. at ¶ 52;

!

“On August 13, [2014,] Reardon and Dearth began their trip from Boston
to Atlanta.” Id. at ¶ 60;

!

On August 15, 2014, Dearth attacked plaintiff at his home in Georgia,
while Reardon sat in the car. Id. at ¶¶ 70–76;

!

“Reardon called Tracey Valentine to let her know the job was done.
Reardon always updated her because she was with Gussman.” Id. at ¶
77; and,

!

“Upon information and belief, Gussman and Tracey Valentine paid for
Reardon’s and Dearth’s travel expenses, the rental car, and the hotel they
stayed at in Atlanta.” Id. at ¶ 55.
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Accordingly, I find that the burden of extending the discovery back to 2011 or
past August 31, 2015 is not proportional to the needs of the case or necessary for
plaintiff to establish his liability and damages claims.3
C.

Defendants’ Motions for Protective Orders
1.

Tax Returns

Relatedly, defendants Gussman and Valentine-Gussman move for a protective
order concerning subpoenas plaintiff served on Dennis M. Spurling, P.C. and Naffah &
Company, PC that seek defendants’ state and federal tax returns from 2011 to the
present. Defendants argue these requests are “unduly burdensome, oppressive,
harassing, and not reasonably related to the claims or defenses in this action,” Docket #
59, at 3. Plaintiff counters that the tax returns relating to Gussman, ValentineGussman, and the corporate and trust entities they are affiliated with are relevant to
liability and damages. Specifically, he argues that the tax returns may provide evidence
in support of his claim of civil conspiracy because such information “may evidence the
relationship and any transactions between them and their co-conspirators, Reardon and
Dearth.” Docket # 71, at 3. Separately, plaintiff argues that the tax returns are
independently relevant to damages as “evidence of Gussman and ValentineGussman’s financial condition.” Id. at 6. Consistent with my ruling above, defendants’

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This does not, however, preclude plaintiff from presenting evidence at trial establishing
the relationship between plaintiff and Gussm an, and to provide context for plaintiff’s allegation that the
alleged anim osity between Gussm an and plaintiff began to brew as early as 2011. In any event, based on
m em oranda filed with the court, plaintiff appears to already have collected discovery from 2011 through
2014, see e.g., Docket # 147, at 3–9, and from 2014 through April 2017, see id. at 18–19. Further, to the
extent that plaintiff contends that defendants’ current financial inform ation is relevant to the issue of
dam ages, I will instruct the jury not to consider such inform ation when determ ining punitive dam ages, if
any.

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motion is allowed to the extent that plaintiff is permitted to discover such information
from January 1, 2014 through August 31, 2015.
2.

Telephone Records and Financial Information

Defendants Gussman, Valentine-Gussman, and Reardon further move for a
protective order concerning subpoenas plaintiff served on various cell phone providers
and financial institutions “to the extent such subpoenas seek records before or after the
period of January 1, 2014 to December 31, 2014.” Docket # 61, at 1; see Dockets # 72,
87. Plaintiff is permitted to discover financial information from January 1, 2014 through
August 31, 2015. With respect to information sought from cell phone providers, the
court refrains at this time from issuing a protective order as the relevant statutes
sufficiently set forth the limitations of discovery from entities providing electronic
communication services and cable providers, and plaintiff’s ability to seek such
information without defendants’ consent. See 18 U.S.C. § 2702; 47 U.S.C. § 551.
Relatedly, plaintiff seeks an order authorizing Comcast to produce documents of
landline telephone records for Gussman’s residence located 287 Langley Road, Unit
19, Newton, MA 02459. Defendant has not filed any opposition to this motion, and
plaintiff represents that Gussman “does not oppose this request as it relates to his 2014
records.” Docket # 135, at 2.4 However, I find no authority under the Cable
Communications Policy Act to issue such an order. Plaintiff argues that under the Act,
a “cable operator may disclose such information if the disclosure is . . . made pursuant
to a court order authorizing such disclosure, if the subscriber is notified of such order by
4

Certainly if defendant Gussm an consents to such disclosure, he m ay provide written or
electronic consent to the subscriber to allow Com cast to provide records from 2014 to plaintiff. See 47
U.S.C. § 551(c).

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the person to whom the order is directed.” Id. at 3 (citing 47 U.S.C. § 551(c)(2)(B)).
Importantly, plaintiff omits the clause prior to that quoted language, which states that
the disclosure is “subject to subsection (h) of [47 U.S.C. § 551],” 47 U.S.C. §
551(c)(2)(B). Subsection (h), similar to the Stored Communications Act, provides that a
court may order such disclosure by a third-party cable operator if it is in response to a
request from a “governmental entity,” 47 U.S.C. § 551(h). There is no mention or
allowance, however, under the Cable Communications Policy Act for a court to issue
disclosure in response to a civil subpoena. Accordingly, plaintiff’s motion is denied.
3.

Cell Phone Carriers

Defendants move for a protective order precluding cell phone carriers from
disclosing the contents of any and all stored text messages. As explained above, there
is no need for the court to issue such an order because the Stored Communications Act
prohibits these entities from producing defendants’ text messages. See 18 U.S.C. §
2702(a). Plaintiff concedes as much, see Docket # 81, at 2, and instead, asks the court
to order defendants to consent to the disclosure of that information. Defendants have
asserted their Fifth Amendment right against self-incrimination. Plaintiff has not
identified any cases where the court ordered the production of electronically stored
information belonging to defendants who have asserted their Fifth Amendment right.
The court finds no authority to issue such an order and declines to do so at this time.
Thus, to the extent that defendants refuse to produce cell phone or telephone records
themselves in accordance with Federal Rule of Civil Procedure 34 because they have
asserted their Fifth Amendment right, and to the extent they refuse to provide consent
to the subpoenaed third-parties to release such information, the plaintiff may have no
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recourse. Although these documents may be “crucial to showing Defendants’
conspiracy to injure or kill Mr. Merrifield,” Docket # 135, at 4, as plaintiff’s counsel has
noted, plaintiff may ask the jury to draw adverse inferences from defendants’ assertion
of the privilege. See Iantosca v. Benistar Administrative Serv., Inc, 567 Fed. App’x 1, 6
(1st Cir. 2014) (finding that it was “sound law” for the district court to instruct a jury that
they could draw adverse inference against civil defendant who asserted the Fifth
Amendment).
II.

Conclusion
1.

Plaintiff’s Motion for Attachment of Additional Assets, Request to Conduct
Discovery and Request for an Evidentiary Hearing (Docket # 28) is
ALLOWED IN PART and DENIED IN PART. No additional assets may be
attached. Discovery shall be limited to the time period between January
1, 2014 through August 31, 2015.

2.

Defendant Robert Gussman’s Motion for Protective Order Concerning
Subpoena Duces Tecum to Dennis M. Spurling, P.C. and Naffah &
Company, PC (Docket # 59); Defendant Tracey Valentine-Gussman’s
Joinder and Motion for Further Protective Order (Docket # 60); and
Defendant Robert Gussman’s Cross-Joinder in Defendant Tracey
Valentine-Gussman’s Motion for Further Protective Order (Docket # 61)
are ALLOWED IN PART and DENIED IN PART. Discovery shall be
limited to the time period between January 1, 2014 through August 31,
2015.

3.

Defendant Robert Gussman’s Second Motion for Protective Order (Docket
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# 72) is ALLOWED IN PART and DENIED IN PART. Discovery shall be
limited to the time period between January 1, 2014 through August 31,
2015.
4.

Defendant Matthew Reardon’s Motion for Protective Order Concerning
Subpoena Duces Tecum (Docket # 87) is ALLOWED IN PART and
DENIED IN PART. Discovery shall be limited to the time period between
January 1, 2014 through August 31, 2015.

5.

Plaintiff Thomas Merrifield’s Motion for Order Authorizing Comcast Phone
of Massachusetts, Inc. To Produce Records Pursuant to 47 U.S.C. §
551(c)(2)(B) (Docket # 135) is DENIED.

6.

Plaintiff Thomas Merrifield’s Supplemental Motion on Defendants’
Pending Motions for Protective Orders (Docket # 147) is ALLOWED IN
PARTand DENIED IN PART. Discovery shall be limited to the time period
between January 1, 2014 through August 31, 2015.

November 6, 2017

/s/Rya W. Zobel

DATE

RYA W . ZOBEL
SENIOR UNITED STATES DISTRICT JUDGE

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