Gattineri v. Wynn MA, LLC et al

Filing 116

Magistrate Judge Donald L. Cabell: ORDER entered. ORDER ON DEFENDANT WYNN MA, LLC'S MOTION TO COMPEL FULL AND COMPLETE RESPONSES TO ITS FIRST SET OF INTERROGATORIES granting 42 Motion to Compel. (Russo, Noreen)

Case 1:18-cv-11229-FDS Document 116 Filed 08/13/20 Page 1 of 5

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ANTHONY GATTINERI,
Plaintiff,
v.
WYNN MA, LLC and WYNN RESORTS,
LIMITED,
Defendants.
No. 18-cv-11229-FDS
WYNN MA, LLC,
Plaintiff-in-Counterclaim,
v.
ANTHONY GATTINERI,
Defendant-in-Counterclaim.

ORDER ON DEFENDANT WYNN MA, LLC’S MOTION TO COMPEL FULL AND
COMPLETE RESPONSES TO ITS FIRST SET OF INTERROGATORIES
CABELL, U.S.M.J.:
This dispute arises from the Wynn defendants’ purchase of
property in Everett, on which they constructed the Encore Boston
Harbor Casino. Plaintiff Anthony Gattineri, a member of the realty
group that sold the property, claims that Wynn breached an oral
agreement made in San Diego (San Diego Agreement) to pay him in
accordance with the original purchase price of the property rather

Case 1:18-cv-11229-FDS Document 116 Filed 08/13/20 Page 2 of 5

than the lower price later negotiated.
for

intentional

interference

with

an

Wynn has counterclaimed
advantageous

business

relationship Wynn allegedly enjoyed with the Massachusetts Gaming
Commission.
On September 25, 2019, after the plaintiff had produced
approximately 9,000 pages to Wynn in response to a request for
documents,

Wynn

served

interrogatories.

the

plaintiff

with

its

first

set

of

At issue are interrogatories 1, 2, and 5:

1. Identify by bates number, each document that You have produced
in this Action regarding, related to, or that references the
San Diego Agreement.
2. Identify by bates number, each document that You have produced
concerning the allegations contained in ¶¶ 13, 28, and 35 of
the Complaint.1
3. Identify by bates number, each document You have produced in
which You stated Your opposition to “accepting a lower price”
as alleged in ¶ 13 of the Complaint.
The plaintiff objected to each of these on the grounds that
they were unduly burdensome and interposed for an improper purpose.
He asserted that the information sought had already been made
available through his document production and that he should not
be

forced

to

make

an

extremely

time-consuming

and

onerous

Paragraph 13 alleges that the plaintiff was opposed to accepting the lowernegotiated price for the property. Paragraph 28 alleges that Gattineri met
with a Wynn senior executive in San Diego, where Gattineri refused to sign
off on the reduced purchase price. Paragraph 35 alleges that after Wynn
supposedly told Gattineri it would “make him whole” by paying him in
accordance with the original purchase price for the property, the Wynn
executive stayed in close contact with Gattineri to make sure Gattineri would
sign off on the purchase.
1

2

Case 1:18-cv-11229-FDS Document 116 Filed 08/13/20 Page 3 of 5

compilation of information where the documents from which this
compilation would come were already in Wynn’s possession.

Wynn

then filed this motion to compel (D. 42).
In resisting these interrogatories, the plaintiff does not
rely specifically on the business records exception of Fed. R.
Civ. P. 33(d).

However, he does assert that these interrogatories

are compilation rather than contention interrogatories, and that
it would be no more burdensome for the defendant to identify these
documents than it would be for him to do so.

The court disagrees.

While the interrogatories in question are not explicitly
phrased with “contention” language, they do ask the plaintiff to
identify the documents that support various allegations.

As such,

these

type

interrogatories

are

far

different

from

the

of

interrogatories this court considered in United States ex rel.
Martino-Fleming v. South Bay Mental Health Ctr., Inc., 332 F.R.D.
1 (D. Mass. 2019), which the plaintiff contends supports his
position.
In Martino-Fleming, the relator asked the defendant health
center (South Bay) for detailed data for mental health clinicians
spanning nearly 20 facilities and a 10-year period.

Once South

Bay compiled this data -- much of it handwritten -- and provided
Martino-Fleming

with

Bates

number

ranges,

indices,

and

spreadsheets, the court held that it would be no more burdensome
for the relator to find specific information within the compilation
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Case 1:18-cv-11229-FDS Document 116 Filed 08/13/20 Page 4 of 5

than the defendant.

Because of the turnover of personnel and the

scope of the request, South Bay had no special knowledge of the
data that would have made it easier for it to ascertain the
answers.

Further, the interrogatories requested neutral data

rather than the substantiation of contentions.
Here, though, the issue is not compilation of business data
bur rather the identification of documents upon which the plaintiff
intends to rely in meeting his burden of proof. Providing business
records in lieu of written answers to interrogatories is not the
norm, but rather is an exception to the general rule that answering
interrogatories by referring to pleadings or other discovery is
insufficient.

See Trustees of Boston Univ. v. Everlight Elec.

Co., No. 12-cv-12326-PBS, 2014 WL 12792364, at * 2 (D. Mass May
16, 2014); see also Bank of America, N.A. v. Barnes Hill, LLC, No.
16-cv-11583-DJC, 2018 WL 10247150, at *3 (D. Mass. July 26, 2018)
(if party intended to rely on its document production to answer
interrogatories, it would need to specify which documents or batesstamp

reference

numbers

were

responsive

to

particular

interrogatories).
Further, the plaintiff should know what documents within his
possession he plans to cite in support of his contentions.

Thus,

he a priori has a greater ability than would Wynn to identify the
documents responsive to Wynn’s requests.

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Case 1:18-cv-11229-FDS Document 116 Filed 08/13/20 Page 5 of 5

Therefore, the Defendant Wynn MA, LLC’s Motion to Compel Full
and Complete Reponses to its First Set of Interrogatories (D. 42)
is GRANTED.

For interrogatory numbers 1, 2, and 5, the plaintiff

is ORDERED to identify, by reference to specific documents or by
bates-stamped reference numbers, which documents are responsive to
each particular interrogatory.

The plaintiff shall provide the

defendant with answers to these interrogatories within 10 days
from the date of this Order.

SO ORDERED.

DATED:

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.

August 13, 2020

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