One of the most basic tenets in civil litigation is a party’s obligation to retain evidence that may be pertinent to a lawsuit or a potential lawsuit.
A Massachusetts judge has ruled that developer Stephen Weiner and his son, Adam, violated that tenet by deleting emails and text messages in the face of a possible lawsuit from John Fish over a failed $800 million condominium tower project, the Boston Globe reported.
At issue is who walked away from the project at 1000 Boylston in 2019.
Fish, who would have built the tower, claims Stephen Weiner and his son backed out in August 2019 after declining to back $400 million in financing for the project. Fish sued the Weiners a couple of months later, claiming he’d suffered millions of dollars in damages. The Weiners say Fish pulled the plug on the deal and have filed counterclaims.
Fish’s attorneys asked the court to sanction the Weiners for the spoliation of evidence between Aug. 20 and Oct. 23, 2019 — the period of time from when Fish sent a dispute notice to the Weiners and when he filed suit, according to the Globe.
The motion said the Weiners deleted every email, voicemail and text message related to the project from August 2019 to after the complaint was filed, the outlet reported. Further, on Oct. 5, 2019, the day Fish’s lawyer set as a deadline for the Weiners to settle or face a lawsuit, Adam Weiner “permanently erased all of the data on his cell phone,” the motion says.
The Weiners claimed they didn’t believe a lawsuit was likely and it was their normal business practice to wipe electronic communications, the Globe reported.
Suffolk Superior Court Judge Kenneth W. Salinger initially ruled against Fish in the spoliation motion, but Fish successfully appealed, with the appellate court instructing Salinger to apply a different standard of review.
In a ruling last week, Salinger, applying the different standard, said the Weiners “knew or reasonably should have known that evidence might have been relevant to possible action,” and they had spoliated evidence between Aug. 20 and Oct. 1, 2019, the outlet reported.
Fish’s attorney, Paul Popeo of Choate, Hall & Stewart, said he was pleased with the ruling, while Dot Joyce, a spokeswoman for the Weiners, said Salinger’s initial ruling was the correct one, the Globe reported.
The litigation is moving forward, with Fish having been scheduled to be deposed late last week.
— Ted Glanzer