414 Mass. 721 (1993), GTE Products Corp. v. Stewart

• Docket Number: .
• Date: 06 April 1993
• Citation: 414 Mass. 721,610 N.E.2d 892
• Parties: GTE PRODUCTS CORPORATION v. Jefferson Davis STEWART, Third.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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414 Mass. 721 (1993)

610 N.E.2d 892

GTE PRODUCTS CORPORATION

v.

Jefferson Davis STEWART, Third.

Supreme Judicial Court of Massachusetts, Essex.

April 6, 1993

Argued Dec. 10, 1992.

[610 N.E.2d 893] Arthur G. Telegen, Boston (Nina Joan Kimball with him), for plaintiff.

Earle C. Cooley, Boston (Paul F. Beckwith with him), for defendant.

Before ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

ABRAMS, Justice.

GTE Products Corporation (GTE) commenced this action against Jefferson Davis Stewart, III, its former in-house counsel, seeking preliminary and permanent injunctive relief, as well as damages. GTE claimed that (1) Stewart violated the attorney-client privilege, his ethical obligations as a member of the Kentucky bar, and the disciplinary rules of this court by disclosing certain documents to his own attorney;

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and (2) by removing or not returning the documents, Stewart unlawfully converted them to his own use. Stewart counterclaimed against GTE, alleging (1) wrongful [610 N.E.2d 894] discharge; (2) breach of the implied covenant of good faith and fair dealing; (3) conspiracy to commit wrongful discharge; and (4) intentional infliction of emotional distress.

A Superior Court judge, after hearing, declined to issue a preliminary injunction ordering the return of the documents but did enter an order prohibiting Stewart from any further disclosure. Pursuant to G.L. c. 231, § 118, second par. (1990 ed.), GTE appeals from the portion of the interlocutory order in which the judge declined to order Stewart to return the documents. 1 We transferred this case on our own motion. We affirm.

Standard of review. In reviewing a denial of a request for a preliminary injunction, we determine whether the judge abused his discretion. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615, 405 N.E.2d 106 (1980). "[W]hile weight will be accorded to the exercise of discretion by the judge below, if the order was predicated solely on documentary evidence we may draw our own conclusions from the record." Id. at 616, 405 N.E.2d 106. The judge heard argument but did not take any evidence. We therefore review the record to determine whether it "supports the judge's resolution of the factual questions before him." Id. at 622, 405 N.E.2d 106.

Standard for preliminary injunction. "[W]hen asked to grant a preliminary injunction, the judge initially evaluates in combination the moving party's claim of injury and chance of success on the merits. If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable

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harm which granting the injunction would create for the opposing party.... Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue." (Footnote omitted.) Packaging Indus. Group, Inc. v. Cheney, supra at 617, 405 N.E.2d 106. "In an appropriate case, the risk of harm to the public interest also may be considered." Brookline v. Goldstein, 388 Mass. 443, 447, 447 N.E.2d 641 (1983).

We summarize the facts. GTE Service Corporation, an affiliate of the plaintiff, employed Stewart as in-house counsel. 2 At some point in August, 1991, Stewart's employment at GTE terminated. Stewart retained an attorney who wrote to GTE informing it of Stewart's claim of wrongful discharge. Through this letter, GTE became aware that Stewart had various documents. 3 GTE brought suit to recover these documents and Stewart counterclaimed for wrongful discharge. At GTE's request, the action has proceeded under seal.

In his order on GTE's motion for a preliminary injunction, the judge determined that "it appears that ... upon leaving his employment Stewart took with him certain documents containing privileged and confidential information." 4 In his order, the judge noted that there was "a serious dispute factually as to whether Stewart voluntarily and unilaterally severed his employment or whether he was effectively pushed out the door as too confrontational, unsuited for advancement and terminated in retaliation for his strong stand on issues of [610 N.E.2d 895] public safety regarding plaintiff's products." The judge declined to order the return of the documents. He did,

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however, issue "an interlocutory order prohibiting the defendant Stewart, his agents, servants and any person acting in concert with Stewart from any further disclosure of any, every, and all communications[,] documents, materials, that has occurred between plaintiff corporation and the defendant employee-attorney Stewart [see note 2, supra ] which arose out of the employment relationship which had to do with the defendant rendering legal services, advices, or opinions."

Harm to the plaintiff. GTE claims that denial of so much of the request for a preliminary injunction as would have ordered Stewart to return the privileged documents causes irreparable harm to the confidence and trust GTE has placed in its in-house counsel. GTE cites various cases where courts issued injunctions...