Monday, December 19, 2011

Delay, Intimidate

Ken O'Brien

I recently wrote a piece remarking on the apparent absence of the firm specializing in municipal law from town activities.

Well, so much for that seeming hiatus.

As many of you are probably aware, a case is pending in Worcester Superior Court challenging the validity of the bylaw expanding the Board of Health from 3 to 5 members. (This should not be confused with a separate action now before the State Supreme Court relating to the landfill site assignment hearings).

Attorney Pecci was notified by Atty. Adam Costa of Blatman, Bobrowski & Mead on December 15th that, in anticipation of a Motion for Summary Judgment in the case, he had scheduled a series of depositions of six of the plaintiffs between Tuesday and Thursday of this week at Southbridge Town Hall.

Attorney Pecci responded to the proposed deposition with the following letter and motion:

------------------------------------------------------------------------------------------------------------


Kirstie L. Pecci, Esq.
138 McGilpin Road
Sturbridge, Ma 01566
kirstielpecci@gmail.com
(508) 347-5507
December 16, 2011
Via Overnight Delivery
Adam J. Costa, Esq.
Blatman, Bobrowski & Mead, LLC
9 Damonmill Square, Suite 4A4
Concord, MA 01742

Re: Twenty-One Citizens of Southbridge v. Town of Southbridge, Civil Docket No. WOCV2011-01792-B


Dear Adam:

In compliance with Superior Court Rules 9A, please find Plaintiffs’ Motion for Protective Order in the above-referenced matter.

Please contact me if you have any questions or concerns regarding the enclosed.

Very truly yours,
/s/
Kirstie L. Pecci
Enclosures
cc: Client




COMMONWEALTH OF MASSACHUSETTS
WORCESTER, SS. SUPERIOR COURT DEPT.
OF THE TRIAL COURT
WORCV2011-01792-B
__________________________________________
TWENTY-ONE CITIZENS OF SOUTHBRIDGE,
KENNETH M. O’BRIEN, et al. (Plaintiffs )

v.

THE TOWN OF SOUTHBRIDGE (Defendant )
__________________________________________

PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER PURSUANT TO M.R.C.P.
26(c) REGARDING DEPOSITIONS

The Town Home Rule Charter of the Town of Southbridge (the “Town”) was
adopted by the electorate of the Town on or about June 6, 2003 and took effect on July 1,2004 (the “Charter”). Charter §4-3-1 mandates that the Town Manager (“Town Manager”), subject to confirmation by the Town Council (“Town Manager”), shall appoint a “three member board of health.” On or about August 29, 2011, the Town Council, on the recommendation of the Town Manager, voted to appoint a fourth and fifth member to the Board of Health, Dean Cook and David Williams, in direct contradiction to the terms of the Charter.

Plaintiffs, twenty-one residents and registered voters of the Town of Southbridge,
brought an action for declaratory judgment pursuant to Mass. Gen. Laws c. 231A and injunctive relief in response to this illegal increase in membership of the Board of Health.

The Town’s attorney notified Plaintiffs’ counsel that plaintiffs Bradley R. Adams,
Amelia Peloquin, Gustavo Fernandez, Javier Melendez, Monika Agnello and Lourdes Fernandez were scheduled for depositions for Tuesday, December 20, 2011 through Thursday, December 22, 2011. Plaintiffs’ attorney contacted Defendant’s attorney and suggested that

 1)holding depositions the week before Christmas places an undue burden
on Plaintiffs;

2) there are no factual disputes and all relevant facts are part of the Public
Record and in Defendant’s possession; and 

3) a Request for Admissions would be a more appropriate means of clarifying Defendant’s questions.

Despite the above, the Defendant is planning to proceed with the scheduled depositions. Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion for a Protective Order because;

1. The depositions, scheduled to be conducted by the Town of Southbridge at the Town Hall, would annoy, embarrass, and oppress the six plaintiffs chosen by the Town to be deposed.

2. Requiring the six targeted plaintiffs to take time off from their employment to attend the depositions, especially as they were scheduled the week before Christmas, would place an undue burden and expense on the Plaintiffs.

3. Plaintiffs have no evidence that is not already in the possession of the Defendant, who is the keeper of the public record. However, if there are matters which Defendant wishes to clarify, a Request for Admissions is an appropriate alternative.

Conclusion
For the reasons stated above, the Plaintiffs respectfully request that the Court
grant the Plaintiffs’ Motion for a Protective Order and order the Defendant to forgo the scheduled depositions.


As Attorney Pecci rightly points out, all matters of fact are available in public records.

This can be viewed only as a tactic intended to delay and intimidate, not unlike my own experiences as outlined in the above referenced article. It also conforms to the experiences of Attorney Brackett in confronting constant stonewalling from the town administration in providing documentation relating to the cases of Anne Beinema and Paul Zotos.

Attorney Costa informed Attorney Pecci that the depositions would proceed as planned. Plaintiffs have been advised by Attorney Pecci not to participate in these proceedings.

It is interesting to note that the last item on tonight’s town council agenda is to go into executive session to discuss litigation.

Oh, if only cameras were permitted!

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