Discovery Motion Denial Story

by Philip Greenspun, part of the Smyly litigation saga.

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On Friday, March 31, 1995 at 9:15 am, Judge Brian Merrick came out of his chambers into the Malden District Court's civil session. The clerk said that he'd do the motion list first then called the names of two parties. Neither answered. Then he called my name and that of Smyly Autos. Karl Drews, Smyly's insurance company's lawyer, approached the bench and I followed. The judge, a man of about 40 with a stern demeanor, asked me what the case was about. I explained that I had taken my Caravan to Smyly for service, the stereo had been expertly removed, and that Smyly had refused to pay. Drews, 30ish with a boring face under a bowl haircut, said that they'd tried to settle the case and the judge would find their offer of judgment for $750 in the file. "What more do you want?" asked the judge.

I explained that I wanted compensation for my lost consulting time and also treble damages under 93A, the Massachusetts Consumer Protection Act. "Did you send a 93A demand letter?" the judge asked. "Yes and Smyly never responded to it," I said. Drews interjected, "We don't believe that it was a proper 93A letter, your honor." "That remains to be seen," said the judge sharply.

The judge then turned to me and asked "What do you want with this motion?" I explained that the first item asked for the names of potential witnesses to the stereo removal, including employees and customers. The judge looked at the motion for a bit and then said "I'm not going to allow that. Your motion is denied." He then turned to Drews and asked what his motion was about.

"We've asked in our interrogatory for the plaintiff to set forth what he knows about the event, from his personal knowledge," Drews said. I responded that my Complaint was extremely detailed. Drews said, "We're entitled to a sworn answer." The judge said, "He wasn't there when the stereo was taken. He doesn't have any personal knowledge. I'll tell you what. I'll either allow both motions or deny them both, which do you prefer?" Drews asked meekly that both be denied.

Judge Merrick finished by saying "I'm setting a trial date for next Friday. Any objections?" Drews and I stepped back, both a too little stunned to object.

Afterwards, I realized that the judge had looked only at the top item in each motion. Smyly should have produced documents in response to a request I'd made back in November and had not. Part of my motion was a very simple request that they be compelled to do so. Thus we were going to trial with essentially no discovery from them.

After the hearing was over, I began looking into Smyly's past lawsuits against consumers.
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