A quarterly summary and brief analysis of significant decisions issued by the Massachusetts Superior Court Business Litigation Session. A service of O’Connor, Carnathan and Mack LLC.		  

May 2007

Volume 3
Number 4
Page 4
 

Summarizing opinions from October 1, 2006 through
December 31, 2006


Another detailed analysis of the attorney-client privilege
 

 

 
 
 

 

 

 

 

 



 
     

O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Transocean Capital, Inc. v. Fortin, 21 Mass. L. Rep. 597, 2006 Mass. LEXIS 504
(Oct. 20, 2006) (Gants, J.).
     

This is another case in which the Court carefully addressed the attorney-client privilege where an email was sent by an individual using his corporate email address. The Court held that an email, even if sent by a client to his attorney, can be considered non-confidential (and therefore not privileged) if there is a reasonable expectation that others will have access to the email. In this case, the client, an individual, used his company email account. However, the Court found that he did not receive any notice that

 

 

 

 

 

 
anyone else at the company could read his emails (for example in an employee handbook). Therefore, the Court held that the communication was confidential and protected, unless it had been waived. The Court, however, went on to find that the client had waived the privilege by send-ing an email in which he conveyed his counsel’s concerns. Having waived the privilege, the Court determined the scope of the waiver and allowed the motion to compel deposition testimony insofar as it pertained the matters waived.

 
 

 

 

 

 

 



 
 
     
     
 


Court addresses the question of standing to challenge government conduct
 

 

 
 

 

 

 

 

 

 

 


 

Indeck Maine Energy, LLC v. Commonwealth of Massachusetts, Division of Energy Resources, 21 Mass. L. Rep. 507, 2006 Mass. LEXIS 481
(Oct. 2, 2006) (van Gestel, J.).
     
The plaintiffs in this case sought a writ of mandamus compelling the Commonwealth of Massachusetts, Division of Energy Resources (DOER) to revoke Statements of Qualification (SQ) issued by DOER to two of plaintiffs’ competitors pursuant to G.L. c. 25A, §11F. Plaintiffs claimed that the issuance of the SQs threatened their existence. Although the statute is likely to be encountered by only a very few practitioners, the case is important in that it addresses the issue of standing to challenge government action. The general rule is that an injury derived from business competition is not sufficient to
 

 

 

 

 

 

 
confer standing. There is a well established exception, however, where the competitors operate in a regulated industry. Plaintiffs claimed the benefit of that exception. The Court rejected Plaintiffs’ argument. The Court, relying on a 1996 decision of the Appeals Court (Mass. Ass’n of Cosmetology Schools, Inc. v. Bd. of registration in Cosmetology, 40 Mass. App. Ct. 706 (1996)), held that “regulated industry” means control over competition or pricing. The Court concluded that the issuance of a SQ is not a control over competition or pricing and therefore dismissed the case.
 

 

 

 

 

 



 


 
 
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