The preservation of evidence is a crucial obligation under civil law. The judge found that the Weiners’ failure to do so when it was reasonable to expect a lawsuit was detrimental to Fish. The construction magnate sued the developers two months after the 1000 Boylston project was killed, and the so-called trail of evidence could be presented to the jury when the lawsuit goes to trial.
Salinger’s action is the latest twist in the more than three-year legal battle between Fish and Steve Weiner, two of the most prominent players in the local real estate scene and once close friends. The central question in the battle is which side of the deal walked away.
Fish argues that Weiner was reluctant to personally return $400 million in funding for the project, unilaterally announcing on August 16, 2019 that it would not proceed. Fish sued two months later, claiming tens of millions of dollars in losses due to the Weiners’ actions. The Weiners say that Fish was the one who wanted to back out.
Fish personally invested in the 1000 Boylston project, near the Hynes Convention Center, and his Suffolk construction company would build the tower. Steve Weiner and his son, who took the lead on the project, were responsible for arranging financing.
The Weiners said the case is without merit and are filing counterclaims.
As the case dragged on, Fish’s lawyers asked Salinger last September to sanction the Weiners for spoliation. The motion focused on the period between August 20, 2019, when Fish sent a “dispute notice” to the Weiners that he said made clear he could sue, and October 23, 2019, when the lawsuit was filed.
According to the motion, “Stephen Weiner deleted every Project-related email, voicemail and text message he received or sent from August 2019 until after the complaint was filed. Adam Weiner also systematically deleted Project-related emails and text messages. And on 5 October 2019 – the day Mr. Fish’s lawyer set as the deadline for the Weiners to accept Fish’s proposal or face litigation – Adam Weiner permanently deleted all the data on his cell phone.”
Not a good look.
In opposing Fish’s motion, the Weiners’ attorneys argued that their clients do not believe a lawsuit by Fish is likely and that removing the electronic communications is in keeping with their normal business practice.
“In short: the Weiners had no duty to preserve emails and text messages over the relevant period because they did not reasonably anticipate litigation,” the lawyers wrote.
Salinger initially ruled in the Weiners’ favor.
On January 6, he wrote that it was reasonable for them not to consider a lawsuit “very likely” until at least October 1, 2019.
That’s the day Fish’s lawyers sent a letter to the Weiners’ legal team with a settlement offer and the warning that Fish “will be forced to make restitution [his losses] by other mechanisms” if an agreement has not been reached by 5 October.
What about the stretch between October 1 and October 23? Salinger said Fish has not shown that he suffered “any prejudice from the tampering of evidence” during that time.
Fish’s lawyers appealed Salinger’s initial ruling, and a state appeals court judge said the lower court was wrong to cite the “highly probable” standard in denying Fish’s motion. Instead, Associate Justice Vickie L. Henry sent the case back to Salinger, saying he must determine whether the Weiners “knew or reasonably should have known that evidence might be relevant to possible action.”
Within hours, Salinger issued a revised order. “Applying this different standard, the Court finds that the defendants tampered with evidence between August 20, 2019 and October 1, 2019,” he wrote.
“We are pleased with the court’s thoughtful consideration, and look forward to presenting evidence of this misconduct to the jury at trial,” Paul Popeo, an attorney for Fish at Choate, Hall & Stewart, said in a email said.
Dot Joyce, a spokeswoman for the Weiners, said Salinger got it right the first time.
“More importantly, there is no evidence to support John Fish’s claims, so he instead resorts to creative legal theater,” she said in an email. “We are confident in our case as we move forward with discovery that includes factual evidence regarding our own claims against Fish.”
Fish will be deposed in the lawsuit on Thursday and Friday. Steve Weiner’s deposition has not been scheduled, while his son’s deposition has already been completed.
Most players in the city’s business world are shaking their heads in disbelief that this lawsuit has not been settled out of court. “Bad for Boston” is the common refrain.
Perhaps the not-so-good look of this latest twist will prompt another round of negotiations.
Larry Edelman can be reached at larry.edelman@globe.com. Follow him on Twitter @GlobeNewsEd.
