AM Project Norwood, LLC v. Endicott South Development Corp., 112619 MASUP, SUCV201702765BLS2

Docket Nº:SUCV201702765BLS2
Opinion Judge:Janet L. Sanders, Justice
Party Name:AM Project Norwood, LLC v. Endicott South Development Corporation et al.
Case Date:November 26, 2019
Court:Superior Court of Massachusetts
 
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AM Project Norwood, LLC

v.

Endicott South Development Corporation et al.

No. SUCV201702765BLS2

Superior Court of Massachusetts, Suffolk, Business Litigation Session

November 26, 2019

MEMORANDUM OF DECISION AND ORDER ON CROSS MOTION TO COMPEL

Janet L. Sanders, Justice

This is a dispute between members of EW Development, LLC (EW), a limited liability company. The plaintiff, AM Project Norwood, LLC (AM Project) owns a 51 percent interest in EW. The defendant Endicott South Development Corporation (Endicott) owns the remaining 49 percent. AM Project instituted this lawsuit to enforce a buy-sell provision in EW’s Operating Agreement (OA). Endicott and co-defendant Peter True responded by asserting various counterclaims, including claims for breach of fiduciary duty, breach of contract and conversion. The gist of these claims is that AM Project and its principals engaged in self-dealing. Thereafter, AM Project amended its complaint to add a count for abuse of process. The case is now before the Court on Cross Motions to Compel Production of Documents. This Court concludes that AM Project’s Motion must be ALLOWED and that Endicott’s Motion must be DENIED.

A. AM Project’s Motion

This Motion seeks three categories of documents. Those categories together with the Court’s rulings are as follows.

1. Communications between True and His Accountants Before this Lawsuit was Instituted

A critical issue in this case is whether AM Project turned over certain records and other information to the defendants as required by the EW’s Operating Agreement. Indeed, in denying AM Project’s motion for partial summary judgment as to enforcement of the buy-sell provision, this Court accepted as true the defendants’ claim that they had not received the financial data they needed to evaluate the offer that AM Project was making pursuant to the buy-sell provision; with Am Project disputing this, summary judgment was determined to be inappropriate. AM Project has also asserted an abuse of process claim so that what the defendants knew before this lawsuit was filed seeking to enforce the buy-sell provision is relevant to that claim as well. Finally, AM Project must defend against defendants’ allegations of self-dealing and improper use of EW funds.

As part of discovery, AM Project has deposed four accountants and a consultant who reviewed EW’s records in the summer of 2017 in connection with the buy-sell offer made by AM Project. This was before the lawsuit began. Certain of these professionals (including accountant Sharon Marsh) apparently summarized their findings and sent these communications to True. Endicott and True are now withholding these documents on the grounds of work product privilege. This Court concludes that these...

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