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MASSACHUSETTS SCH. OF LAW AT ANDOVER, INC. v. ABA

February 15, 1996

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC.
v.
AMERICAN BAR ASSOCIATION, et al.



The opinion of the court was delivered by: DITTER

 Ditter, J.

 February 15, 1996

 In this case, a law school brought suit against the American Bar Association and other defendants after ABA denied the school's application for provisional accreditation. The school alleges that the defendants violated the Sherman Act by maintaining and enforcing anticompetitive standards.

 The school refused to permit compliance with two discovery subpoenas despite three court orders to do so. For repeatedly frustrating legitimate discovery and disobeying court orders, I will order the school's attorney personally to reimburse ABA for its expenses incurred in responding to "Plaintiff's Motion For a Stay and For Reconsideration of the Court's Order Granting Defendant American Bar Association's Rule 37(b) Motion Seeking the Production of Documents." I will further order him to make a payment into the court for his lack of candor and his complete absence of good faith.

 * * *

 In connection with its plan to obtain accreditation, plaintiff, Massachusetts School of Law, hired Ansel S. Chaplin, as its ABA consultant. Mr. Chaplin is an attorney, but apparently his principal service to MSL was recruiting seven New England lawyers who agreed to inspect MSL. *fn1" After they did so, MSL's dean, Lawrence Velvel, with Mr. Chaplin's help, wrote a laudatory report that these attorneys eventually signed. MSL obtained this report for the avowed purpose of using it to receive favorable treatment from the ABA and to the extent it would be helpful or necessary, from other agencies, including the United States Department of Education. When the ABA refused provisional accreditation, MSL brought this suit and attached to the complaint the report that Messrs. Velvel and Chaplin had prepared for the lawyers.

 During the course of discovery, the ABA subpoenaed Mr. Chaplin to produce his records and to submit to a deposition concerning his work for MSL. On instructions for which MSL's attorney, Kenneth N. Hart, Esq., acknowledges responsibility, Mr. Chaplin refused to produce many MSL related documents and to answer many questions at his deposition. Mr. Hart contended that the documents and deposition responses were protected by the attorney-client privilege. I ruled that the attorney-client privilege did not apply, but Mr. Hart instructed Mr. Chaplin still not to comply with ABA's request, contending that I erred when I overruled the attorney-client objection. Despite a second order to comply, Mr. Hart again instructed Mr. Chaplin not to produce the documents or give the testimony. He now asserted that I had neither directed the production of documents nor that Mr. Chaplin's deposition was to proceed when I entered the two orders. Finally, Mr. Hart instructed Mr. Chaplin not to comply because Mr. Hart said discovery had been stayed.

 On October 12, 1995, I ordered plaintiff not to interfere in any way with Ansel Chaplin's answering questions and producing documents concerning his work as MSL's ABA consultant and scheduled a hearing for October 25, 1995, to determine whether sanctions should be imposed on Ansel S. Chaplin, plaintiff, or any of its counsel for their conduct relating to these events. *fn2"

 1. The Responsibility of Kenneth N. Hart

 Kenneth N. Hart, Esq., has been MSL's lead counsel in this litigation since August 2, 1994. As a threshold matter I note that at the sanctions hearing, Mr. Hart, who appeared pro se, stated:

 
whatever actions MSL might have taken or its representatives, Dean Velvel, Professor Rudnick or Professor Malaguti might have taken in response to the Court orders of June 27, August 16th, and September 20th of 1995, they were on my advice and my counsel.
 
Let it be clear that I am the accountable person for this, and I am the responsible person for this, your Honor.

 (Sanctions Hearing, 10/25/95, at 23:9-16). Accordingly, as Mr. Hart avows that he is the only accountable person, my consideration has been limited to determining whether sanctions should be imposed upon him.

 
2. Mr. Hart's Own Words Disprove His Claim that He Was Acting in Good Faith

 This discovery dispute started with two ordinary, straightforward subpoenas and an ordinary, straightforward order to comply with them. *fn3" Both of those subpoenas were directed to Ansel S. Chaplin and both stated in part, "YOU ARE HEREBY COMMANDED to produce and permit inspection and copying of the following documents . . . All documents relating to the Massachusetts School of Law." MSL claimed the protection of the attorney-client privilege, however, and at its instruction, Mr. Chaplin did not produce many of the documents covered by the subpoenas. He also did not fully answer more than 70 questions at his deposition based on the privilege.

 ABA filed a motion "to compel the production of documents and testimony from non-party Ansel S. Chaplin, in compliance with document subpoena served on August 16, 1994, and a subpoena seeking documents and testimony served September 13, 1994." (Defs.' Mot. to Compel Compliance with Subpoena [hereinafter "Defs.' Mot. to Compel"]). Just as the subpoenas were straightforward and in plain English, so too was the ABA's motion to compel.

 Mr. Hart had summarized the motion and subpoenas correctly. My order of June 27, 1995, granted ABA's motion "to compel compliance with subpoena" and explained why "MSL had waived its privilege and that discovery sought by the ABA's subpoena to Ansel Chaplin was to be compelled . . .." (Pl.'s Mot. for Recons. of this Ct.'s Decision and Order Directing Discovery of its Privileged Attorney-Client Communications on Grounds of Waiver, at 1 [hereinafter "Pl.'s Motion for Recons."]). There was no ambiguity, obscure language, or room for misunderstanding in the order. When it is read in the light of the subpoenas, there is only one possible meaning: Mr. Chaplin was "to produce and permit inspection and copying of . . . All documents relating to the Massachusetts School of Law." Mr. Hart never suggested when I issued the order that he did not understand what I meant when I said that the motion to compel was granted. To the contrary, his own words show that he knew exactly what the order required. In his motion for reconsideration of my order of June 27, ...


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