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While litigants often invoke Rule 45 to discover documents from third parties during the course of litigation, courts have rarely ordered payment of the fees incurred by the third party to comply with the subpoena. Judge Leibensperger, however, recently ordered one of the parties in Medical Source, Inc. et al. v. Perkinelmer Health Sciences, Inc. who had issued a subpoena in the case to do just that.

In July 2018, Judge Brian Davis will replace Judge Edward Leibensperger as the judge for the July-December rotation period of BLS1. Governor Deval Patrick appointed Judge Davis to the Superior Court in 2013. Before his appointment, Judge Davis spent his legal career in private practice where he focused on complex commercial disputes, torts, product-liability defense, fraud and insurance, and corporate governance. More information on Judge Davis’s background can be found here and at Massachusetts Lawyers Weekly.

In Fratea, Judge Sanders held that an employee separation agreement that specifically referenced the waiver of Massachusetts Wage Act claims was enforceable. Judge Sanders applied the legal standard established by the SJC in Crocker v. Townsend Gulf Oil Co., Inc. In Crocker, the SJC held that a termination agreement that includes a general release will be enforceable as to Wage Act claims only if such an agreement is stated in clear and unmistakable terms: “[T]he release must be plainly worded and understandable to the average individual and must specifically refer to the rights and claims under the Wage Act that the employee is waiving.” The general release in Crocker failed because it did not reference the Wage Act.

Key Takeaway: In Ginsberg et. al. v. Ginsberg et. al., Judge Leibensperger ruled that a trust beneficiary could assert a trust was procured by fraud despite the presence of a in terrorem or no-contest clause. Judge Leibensperger noted that such a challenge “is an all or nothing venture by the challenging party.” If the challenging party is successful in proving fraud, the entire trust falls. But if the challenging party is unsuccessful, that party loses all benefits from the trust.

In Bay Colony, Judge Salinger denied the defendants’ motion to dismiss a contract claim as time barred even though one defendant (AMB) had sent a letter to the plaintiffs more than six years earlier disputing the existence of a binding agreement between the parties.

Key Takeaway: While Massachusetts courts have jurisdiction over internal church disputes involving church property, they must defer to the decision-making process of a hierarchical religious organization when a dispute is intertwined with religious doctrine.

The comment period for the Superior Court Rules Committee’s proposed amendments to Rules 9A and 9C is open until February 15. While most of the amendments to Rule 9A are merely intended to simplify and reorganize the rule, some would bring more substantive changes. For example, proposed changes to the summary-judgment process include limiting statements of material facts (SOFs) to 20 pages and prohibiting the inclusion of background facts or quotations from contracts, trusts, agreements, statutes, regulations, or rules in SOFs. Background facts, however, would be permitted in a memorandum of law in support of a summary judgment motion, and quotations from the other materials described above could be submitted in an addendum.

Ruling on an issue of first impression in Massachusetts, Judge Kaplan determined that he had authority under Mass. R. Civ. P. 12(f) to strike class allegations from a complaint. Judge Kaplan framed the issue this way: “[T]he practical issue raised by [the defendant’s] motion [to strike] is whether there are sufficient facts pled in the Complaint to permit the class claims to proceed and the plaintiff to take class discovery from [the defendant].” Noting the absence of any Massachusetts cases addressing the issue, Judge Kaplan turned to Federal law and followed the First Circuit’s decision in Manning v. Boston Medical Center Corp., 725 F.3d 34 (1st. Cir. 2013). “In reliance of the federal court decisions interpreting Rules 23 and 12(f),” Judge Kaplan wrote, “this court concludes that . . . a Massachusetts trial court can dismiss class allegations under Mass. R. Civ. P. 12(f).”

Key Takeaway: Where there were “serious questions” about the independence of a board and the good faith of its decision not to pursue a derivative suit against a former director, Judge Kaplan refused to apply the business-judgment rule (BJR).

In Mooney v. Diversified Business Comms., Judge Sanders addressed a number of discovery issues, including the relevance of requested documents, the redaction of non-relevant information in responsive documents, and privilege. The most notable—an issue of first impression in Massachusetts—was whether a former officer suing his old company could discover privileged communications that occurred when he had been employed with the company.

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