Amaral Enterprises LLC v. Gian et al

Filing 48

Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the foregoing reasons, Plaintiffs Motion to Compel - (Docket No. 38) is DENIED in its entirety. It is so ordered. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
AMARAL ENTERPRISES LLC,
Plaintiff,
v.
CHARLES J. GIAN, et al.,
Defendants.

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Action No. 17-cv-30053-KAR

MEMORANDUM AND ORDER ON PLAINTIFF’S
MOTION TO COMPEL CHARLES J. GIAN TO ANSWER DEPOSITION
QUESTIONS AND TO PRECLUDE ARGUMENT AT TRIAL OR AT SUMMARY
JUDGMENT BASED UPON CONTENT OF MAY 29, 2018 TRANSCRIPT
(Dkt. No. 38)
ROBERTSON, M.J.
I.

INTRODUCTION
Plaintiff Amaral Enterprises LLC (“Plaintiff”) owns one of five condominiums in a

building located in Pittsfield, Massachusetts. On February 19, 2013, a frozen pipe in the
building burst, causing water damage to a commercial bakery operated by Bearbones, Inc., d/b/a/
Morningside Bakery, in the condominium unit owned by Plaintiff. This incident has spawned
numerous lawsuits by Plaintiff and Bearbones, including at least three separate lawsuits naming
Charles J. Gian, individually and in his capacities as Manager of the Morningside Plaza Nominee
Trust and of the Morningside Plaza Condominium Association, as a, or as the sole, defendant.
Now before the court is Plaintiff’s Motion to Compel Charles J. Gian to Answer Deposition
Questions and to Preclude Argument at Trial or at Summary Judgment Based Upon Content of
May 29, 2018 Transcript (“Plaintiff’s Motion”) (Dkt. No. 38). 1 The parties have consented to

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Also pending before the court are three additional discovery motions filed by Plaintiff around
the same time: Motion to Compel Charles J. Gian to Produce Documents Based Upon Sworn
Responses to Requests for Admissions Under Fed. R. Civ. P. 36 and to Preclude Argument at
Trial or at Summary Judgment Based Upon Content of May 29, 2018 Transcript and Responses
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this court’s jurisdiction (Dkt. No 7). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. For the reasons
set forth below, the court DENIES Plaintiff’s Motion.
II.

BACKGROUND AND DISCUSSION
Plaintiff’s verified complaint seeks a declaratory judgment that a special assessment of

$80,105.00 is either void or assessed in bad faith to facilitate a foreclosure (Dkt. No. 1 at 1). In
summary, Plaintiff alleges that defendant Charles J. Gian (“Gian”), in his individual capacity and
as Trustee of the Morningside Plaza Condominium Association (“MPCA”), improperly caused
Plaintiff to be assessed $80,105.00 to pay a portion of the legal fees the MPCA has incurred
defending against the multiple suits filed by Plaintiff arising from the February 19, 2013 incident
and its sequelae. According to Plaintiff, the special assessment arises from Gian’s failure to
procure common area casualty insurance despite language in the by-laws of the MPCA requiring
that such casualty insurance be in place and despite that fact that Plaintiff was charged for
common area casualty insurance when it purchased its condominium (id. at 5-6, ¶¶ 14, 18).
Plaintiff further alleges that at no time between October 4, 2013, when Plaintiff filed suit in
Suffolk Superior Court and February 3, 2017, when the special assessment was tendered to
Plaintiff, did Gian or anyone acting on his behalf notify Plaintiff of the intended special
assessment (id. at 5, ¶ 17).
In this case, Plaintiff noticed Gian’s deposition for May 29, 2018 in Boston. It was the
third time that attorney Richard Gannett, Plaintiff’s counsel, had taken Gian’s deposition. Gian
was represented by attorney Ryan Menard, who has not entered an appearance in this case, but

to Request for Admissions (Dkt. No. 39); Motion to Compel Charles J. Gian in All Capacities to
Further Answer Interrogatories (Dkt. No. 40); and Motion to Compel Charles J. Gian in All
Capacities to Produce Time Sheets Time Charges, Invoices or Bills (Dkt. No. 41). The court will
rule separately on each of these three motions.
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who represented Gian in the case previously filed by Plaintiff in the Suffolk Superior Court and
represents him in the case filed by Plaintiff against Gian that is currently pending in the
Berkshire Superior Court. 2 In support of Plaintiff’s Motion, Plaintiff filed a partial transcript of
Gian’s May 29, 2018 deposition; for his part, Gian filed the entire transcript of the deposition
which provides an appropriate basis by which to judge the merits of Plaintiff’s Motion. 3
A review of the transcript shows that Gian’s deposition began around 10:00 a.m. Gannett
questioned Gian for approximately three hours (Gian Dep. 5:1-13 & 142:23-144:14, May 29,
2018, Dkt. No. 42-1). At that point, Gannett announced he was suspending the deposition
because of “speaking objections” being made by Menard (id. 142:23-143:7). Menard placed on
the record his reason for objecting to the questions being posed by Gannett, invoked Federal
Rule of Civil Procedure 37.1, stated that Gian was prepared to continue with the deposition and
warned Gannett that Gian would not voluntarily return for further questioning (id. 142:11-1437). Gannett insisted that he was suspending the deposition and planned on filing a motion (id.).
Menard then placed on the record his reasons for objecting to the suspension of the deposition
and examined his client from approximately 1:00 p.m. to approximately 2:40 p.m. (id. 145:7233:18). After Menard completed his questioning of Gian, he renewed their offer to stay if
Gannett had further questions (id. 233:10-11). Gannett declined the opportunity to pose further
questions to Gian and insisted that the deposition was suspended notwithstanding Menard’s
warning that, absent a court order, Gian would not appear for further questioning (id.).

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Information about these cases is drawn from the Masscourts on-line Superior Court dockets.
The case that was filed in the Suffolk Superior Court, and in which judgment entered in favor of
the defendants, was assigned docket number 1384CV03565; the case that is pending in the
Berkshire Superior Court is assigned docket number 1676CV00048.
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The entire transcript of Gian’s May 29, 2018 deposition is found at pages 31 through 267 of
docket entry 42-1, which was filed by the defendant in his various capacities as one of several
exhibits to his omnibus opposition to Plaintiff’s four motions to compel discovery.
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Federal Rule of Civil Procedure 30(d)(1) provides that a deposition is limited in duration
to “1 day of 7 hours” unless the court orders otherwise, which it must do if additional time is
needed to examine the deponent “or if the deponent, another person, or any other circumstance
impedes or delays the examination.” Plaintiff identifies three factors that he asserts warrant
requiring Gian to return to Boston to answer further questions: (1) Menard did not have an
appearance in the case; (2) Menard made so-called speaking objections and instructed Gian not
to answer certain questions; and 3) Gian swore at Gannett twice (Dkt. No. 38 at 2).
As to the first of these contentions, Plaintiff has pointed to no authority supporting the
claim that an attorney who has not entered an appearance in the case cannot defend a deposition
and the court has not found any. Plaintiff has not shown that the lack of an appearance by
Menard impeded or delayed the examination. Menard had an appearance in the Suffolk County
case that Plaintiff filed against Gian, and he has an appearance in the pending Berkshire County
case that Plaintiff filed against Gian. It is apparent from the transcript of Gian’s deposition
(which the court has read in its entirety) that Menard was knowledgeable about the facts of the
case, familiar with the relevant documents, and had an established attorney-client relationship
with Gian. Menard is a member of the bar of the United States District Court for the District of
Massachusetts and subject to discipline or sanctions for misconduct, if any, based on his actions
in a case pending in this court. To address Plaintiff’s concerns, Menard is ordered to file a
retroactive limited appearance for purposes of appearing at and defending Gian’s deposition in
Boston on May 29, 2018. Alternatively, he is free to file a general appearance on behalf of Gian
in this case, retroactive to the date of Gian’s deposition. In any event, as Menard’s appearance
did not impede or delay the examination, this factor did not merit Plaintiff’s unilateral decision to

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end his questioning of Gian on May 29, 2018 and does not justify departure from Rule 30(d)(1)’s
1-day, 7-hour rule.
As to the second contention, the court does not share Plaintiff’s view that Menard sought
to improperly coach Gian by making speaking objections or that his isolated instructions to Gian
not to answer were inappropriate. Gannett had before him a somewhat obdurate deponent who
claimed to know very little, to be relying on his attorneys, and who had not prepared for his
deposition by reviewing documents (Gian Dep. 12:2-7-29:23, 21:18-22, 23:10-24:4, 83:16-24).
Gannett’s approach did not improve the situation. By way of example, instead of asking factual
questions, he sought to elicit the deponent’s agreement that documents from complex litigation
spanning some five years demonstrated that the deponent was being inconsistent or untruthful
(id. 24:9-29:23, 91:21-107:24). Without informing Gian of an attorney-client privilege objection
asserted to producing copies of legal bills related to litigation between Plaintiff and Gian,
Gannett sought to induce Gian to waive the privilege and agree to producing the documents (e.g.,
id. 109:4-113:8). Cf. Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 36, 42 (D. Mass.
1987) (if opposing counsel sought to cause a witness to divulge attorney-client communications
or work product, such conduct might be sanctionable). Gannett asked misleading questions
based on a partial transcript of a prior deposition in an attempt to demonstrate (inaccurately) that
Gian had previously disclaimed an intent to seek recovery of legal fees on behalf of MPCA
incurred in litigation initiated by Plaintiff (Gian Dep. 119:6-123:5). He asked Gian to explain
the factual bases of the affirmative defenses in the answer filed on Gian’s behalf (id. 125:4129:16). See Neponset Landing Corp. v. The Nw. Mut. Life Ins. Co., 279 F.R.D. 59, 61 (D.
Mass. 2011) (while it is appropriate to ask for factual information from a witness, a lay witness

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should not be expected to testify about the factual basis of an affirmative legal defense). Menard
properly objected to these tactics.
Federal Rule of Civil Procedure 30(d)(1) states that objections made during a deposition
must be stated concisely and in a non-argumentative and non-suggestive manner. In view of the
nature of Gannett’s questions, and the hostility between Gannett and Gian that is apparent in the
transcript, Menard had a difficult role. In that situation, his objections and instructions complied
with Rule 30(d)(1). 4 He sought at times to clarify the record by objecting and asking for more
specificity in a question or asking reasonable questions about a document about which Gannett
was asking a question (Gian Dep. 20:14-21:8, 44:7-20, 70:9-24, 79:4-14, 106:7-22, 121:1-6).
Gannett repeatedly bristled at any attempt to ensure a clearer record. Menard repeatedly told
Gian to wait for a question or to wait until Gannett had completed his question before speaking.
When it appeared that Gian was agitated, Menard tried to pour oil on the troubled waters
between Gannett and Gian. Cf. Southgate v. Vt. Mut. Ins. Co., No. CA 06-500 ML, 2007 WL
1813547, at *6 (D.R.I. June 21, 2007) (rejecting as unsupported by the record counsel’s claim
that his conduct was justified because the opposing attorney was attempting to badger the
deposition witness). He appropriately instructed his client not to answer certain questions in an
attempt to preserve the statutory confidentiality of mediation proceedings and to protect the
confidentiality of attorney-client communications (Gian Dep. 51:19-56:11, 110:20-111:2,
129:22-130:13) Having reviewed the deposition transcript, the court finds that Menard did not
improperly impede or delay Gannett’s questioning of Gian. Contrast, e.g., Big Top USA, Inc. v.
Wittern Grp., 183 F.R.D. 331, 341-43 (D. Mass. 1998). Thus, this contention cannot justify

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Indeed, Gannett’s conduct throughout Menard’s cross-examination of Gian was far more
disruptive, without any cause, than was Menard’s conduct (Gian Dep. 145:8-233:15).
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Gannett’s unilateral suspension of Gian’s deposition and does not warrant requiring Gian to
return for further questioning.
Finally, while the court does not condone Gian’s use of profanity, “[t]he stress of
litigation can understandably result in an isolated uncivil outburst.” Big Top USA, 183 F.R.D. at
342. On the two occasions when Gian used profanity, Menard cautioned his client and tried to
get the deposition back on track (Gian Dep. 15:2-7, 107:23-24). In context, Gian’s outbursts are
understandable. Plaintiff, with Gannett as his counsel, has named Gian as a defendant in three
lawsuits arising directly or tangentially from a single event that occurred in 2013. The first of
these, filed in Suffolk County Superior Court, was dismissed for lack of prosecution on the day
the case was scheduled to go to trial, when Plaintiff and his attorney declined to proceed (id.
155:2-160:15). Gian testified that he has personally paid over $300,000 in attorneys’ fees to
defend these suits (id. 47:10-18). Gannett has previously deposed Gian on two occasions. While
it is difficult to judge the tone of communications from a deposition transcript, it is reasonable to
infer that Gannett’s approach was contentious from the outset. Nonetheless, when Gannett posed
straightforward questions that Gian understood, it appears that Gian made some effort to be
forthcoming. Gannett did not suspend the deposition because of Gian’s use of profanity, and it
does not warrant a departure from the 1-day, 7-hour rule.
Plaintiff has failed to establish a sufficient basis for his motion to compel further
deposition testimony from Gian. Further, he has not shown that he is entitled to the additional
extraordinary relief he seeks of: (1) “a preclusive order against Mr. Gian at trial or in any
summary judgment proceeding barring him from advancing any argument he claimed he did not
‘understand’ or ‘know’ during his deposition of May 29, 2018;” and (2) “a preclusive order
against Mr. Gian at trial or any summary judgment proceeding barring him from advancing any

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argument which the Plaintiff could have discovered at the deposition of Mr. Gian’s counsel
which was halted as the proferred excuse was that such information could be obtained from Mr.
Gian and the deposition of May 29, 2018 of Mr. Gian demonstrates such a contention turned out
to be untrue given the responses to deposition questions” (Dkt. No. 38 at 4). Plaintiff has not
shown that he lacks the information necessary to prosecute his claims. To the extent Gannett
sought factual information relevant to Plaintiff’s claims by deposing Gian for a third time,
Menard elicited a substantial amount of such information during his cross-examination of Gian.
III.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Compel is DENIED in its entirety.

It is so ordered.
Dated: August 14, 2018

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON
U.S. MAGISTRATE JUDGE

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