COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. MALDEN DISTRICT COURT CIVIL ACTION NO. 9450CV872 __________________________________ ) PHILIP GREENSPUN, ) Plaintiff, ) v. ) PLAINTIFF'S MOTION TO COMPEL ) PRODUCTION OF DOCUMENTS SMYLY AUTOS, INC. ) AND FURTHER ANSWERS TO Defendant. ) INTERROGATORIES __________________________________) The plaintiff Philip Greenspun says that on November 1, 1994, interrogatories (annexed hereto as Exhibit A) were served upon the defendant Smyly Autos, Inc. Defendant made no response to these interrogatories until plaintiff filed an application for final judgment (note that this defendant defaulted this case originally for failure to file an answer). Under renewed threat of default, defendant made a response (annexed hereto as Exhibit B) on January 12, 1995. These responses were inadequate for the following reasons. Question 2 Q. Please identify all the persons of whom you are aware who were on the premises of Smyly Autos, Inc. between 10 a.m. on April 13, 1994 and noon on April 15, 1994. Identify each person by full name, relationship to Smyly (i.e., employee, customer, vendor, etc.), home address, home telephone number and work telephone number. A. Defendant objects to this interrogatorie because it is overbroad, vague and beyond the permissable scope of discovery. Subject to objection, the defendant states that there are at least 75 customers per day, plus employees. It would be impossible to supply the requested information. An Alpine stereo was stolen from plaintiff's while it was in the possession of Smyly Autos. The removal was done by someone who (1) had a key to the vehicle (as no glass was broken), (2) had extensive knowledge of Dodge Caravan dashboards (as the panels were taken apart and put back together expertly and without damage to the car per se), and (3) special tools necessary for the disassembly of Dodge dashboards. Consequently, it seems reasonable to suppose that the removal was done by an employee of Smyly Autos who might have been observed in the act by another Smyly employee and/or a customer and/or a vendor. Although plaintiff reported the crime to the Malden Police, they have declined to investigate. The information plaintiff needs to conduct his own investigation is in Smyly's possession and would not be difficult for them to produce. For example, Smyly clearly knows who its employees are and who were on the premises on April 13,14, and 15, 1994. Plaintiff has personally observed Smyly's service department enter all the information on customers, including address and phone number, into an advanced computer database (see plaintiff's affidavit, Exhibit C). It should not take more than a few minutes to print out a list of the customers who were on the premises during the relevant time period. Finally, Smyly knows who its vendors are and which are regularly stationed on-site at Smyly (e.g., Enterprise Rent-a-Car) or visit regularly. Smyly should be compelled to disclose the names of potential witnesses to the theft. Question 3 Q. Please state where the Caravan was located at all times between 10 a.m. on April 13, 1994 and noon on April 15, 1994. A. Caravan when not in for service parked and locked in Row I or J. Smyly has numerous service bays and substructures. The specific location of the Caravan is important for determining who might have seen what and who had access to the Caravan. Smyly should be compelled to give answers of the form "The Caravan went into the inspection sticker bay at 10:30 am on April 14 and went back to the parking lot at 11:15 am." Question 5 Q. Please describe in detail other incidents, since 1985, where a customer has alleged that property was stolen from his vehicle while it was left at Smyly for service. Include the name, home address, home and work telephone numbers of the customers involved. Describe specifically what was taken and what actions Smyly took. A. Defendant objects to this interrogatory because it overbroad, vague and beyond the scope of discovery. Said interrogatory is not reasonably calculated to lead to admissable evidence. Subject to objection, defendant states: In 1994 there was one other allegation of customer stolen radio. When customer was confronted he recanted his allegation. Defendant Smyly by its statement that "We go to court all the time and we always win" has implied that stealing customer property and subsequently litigating is part of its normal business practice. As such, the theft of plaintiff's Alpine is presumably part of a pattern. Smyly should have to divulge details of incidents similar in nature to the one suffered by plaintiff. Question 7 Q. Please describe in detail Smyly's procedures for ensuring that individuals with criminal records, especially for theft, are not hired or allowed access to customer vehicles. A. Once a job is offered to a prospective employee, we have him/her sign a release allowing us to perform a backround check. Although the broad nature of Smyly's denials (e.g., they deny that plaintiff's vehicle was brought to them for service) it is unclear what Smyly's defense is going to be. However, their affirmative number 3 implies that one of their defenses might be that the Alpine was stolen by one of their employees without their knowledge and that therefore they are not liable. Should their legal theory succeed, plaintiff can only recover if he can show negligence on Smyly's part in hiring policies. Consequently, plaintiff is entitled to a more detailed explanation of what kind of pre-hire investigations Smyly performs. Question 11 Q. Please describe in detail any times since 1989 that Smyly was contacted by Chrysler regarding problems with its quality of service or integrity. A. Defendant objects to this interrogatory because it is overbroad, vague and beyond the scope of discovery. Said interrogatory is not reasonably calculated to lead to the discovery of admissable evidence. When plaintiff complained to Chrysler Corporation that their dealership had stolen his stereo, Allen Smith, one of their Boston zone office managers, explained that this was to be expected from Smyly. Smith indicated that Chrysler had a long history of trouble with Smyly and reason to doubt its integrity (see plaintiff's affidavit, Exhibit C). Defendant's communications with Chrysler may well establish that Smyly knew or had reason to know that one of its employees was likely to steal plaintiff's stereo. Question 16 Q. Please state each and every fact upon which you base the denials in your Answer, including your denials of allegations 3,4,5,6,8,9, and 10. A. Defendant objects to this interrogatory because it is overbroad, vague and beyond the scope of discovery. The plaintiff has the burden of proving the elements of his claim. Defendant Smyly has denied virtually everything in plaintiff's complaint, including that plaintiff brought his car for service to Smyly in the first place, that the Alpine stereo was removed from the car while in defendant's possession, and that Greenspun sent them a 93A demand letter. If Smyly has any facts to support these denials, they should be required to disclose them. Plaintiff is entitled to know what defenses Smyly is actually bringing to trial. The plaintiff says further that on November 1, 1994, a request for production of documents (annexed hereto as Exhibit D) was served upon the defendant Smyly Autos, Inc. Defendant has made no response to these requests despite numerous telephone calls from plaintiff to defendant's attorney. The plaintiff moves the court to compel Smyly to produce all the documents described in Exhibit D. Smyly took three months to answer plaintiff's complaint. They are not entitled to more than five months for responding to a document request. Philip G. Greenspun 55 Russell Street Melrose, MA 02176 (617) 662-8735 Dated: March 16, 1995 CERTIFICATE OF SERVICE I hereby certify that I have served the above document upon all other counsel of record by facsimile transmission, on March 16, 1995, and that the above document was served within the time limits set forth in Standing Order 1-88. Philip G. Greenspun 55 Russell Street Melrose, MA 02176 (617) 662-8735 EXHIBIT C: AFFIDAVIT FOR OPPOSITION TO MOTION TO REMOVE DEFAULT I, Philip Greenspun, of 55 Russell Street in Melrose, Massachusetts, hereby do depose and say the following: * When I had the Alpine 7525 that was stolen by Smyly replaced by Rich's Car Tunes on April 20, 1994, the mechanics there stated that the original Alpione had clearly been removed by a professional mechanic. * When I spoke with Allen Smith of Chrysler's local zone office, on April 21, 1994, he stated that the theft of my stereo was something to be expected from Smyly Autos and that they were generally dishonest and unreliable but that unfortunately Chrysler could not do much about it. * I telephoned Karl Drews, Smyly's attorney, on numerous occasions between December, 1994, and March, 1995 about Smyly's failure to respond to my discovery requests. In every case, he promised to produce material but never did, except in response to my motion to default Smyly. Philip G. Greenspun 3/16/95