Image courtesy of Elkus Manfredi
Attorneys for Suffolk Construction CEO John Fish won a round in the three-year legal battle against Boston developer Weiner Ventures over recent claims that the Boston developers destroyed evidence about the failed 1000 Boylston condominium project.
Suffolk Superior Court Judge Kenneth Salinger initially ruled against Suffolk’s motion to sanction Weiner Ventures for Adam and Stephen Weiner’s decision to delete emails and texts about the project as a dispute escalated with their investment partner, Fish, in 2019.
Suffolk’s attorneys at Choate, Hall & Stewart promptly asked a state Appeals Court to overturn the decision, arguing Salinger’s decision was flawed.
In the original decision, Salinger wrote that the Weiners had a duty to preserve communications related to the project on Oct. 1, 2019, when Suffolk’s attorneys sent a letter warning of potential legal action. But the emails and texts were recovered from other parties, Salinger noted.
In a Jan. 30 decision, Appeals Court Justice Vickie Henry said because of the wording of Salinger’s decision, “I cannot tell if the judge applied the correct standard” to seek spoliation sanctions.
“If the judge determines that the defendants spoliated evidence, they should then determine if it prejudiced the defendant. If so, they should determine if sanctions are appropriate,” Henry wrote.
Suffolk blames Weiner Ventures’ “gross mismanagement” for the failure of the billion-dollar project, which would have been built on the Massachusetts Turnpike air rights parcel 15 near the corner of Massachusetts Avenue. The two sides invested over $83 million in the failed project, which was cancelled by the Massachusetts Department of Transportation in 2019.
Suffolk attorneys from Choate, Hall & Stewart LLP have sought to inform a potential jury about the Weiners’ practice of deleting emails and texts related to the project.
As discovery in the case continues, attorneys for Weiner Ventures have received permission to depose developer Steve Samuels, whose Boston-based firm had been a 50-50 partner with Weiner Ventures on the 1000 Boylston project before exiting in 2016 and being replaced as an investor by John Fish.
The Suffolk lawsuit claims that Samuels exited the 1000 Boylston project because of disagreements with the Weiners, and Suffolk attorneys have questioned witnesses during depositions about the circumstances concerning Samuels’ reason for leaving the project. They also have sought to compare the failed 1000 Boylston project with Samuels & Assoc.’s 1001 Boylston St. office-lab-hotel project, which is nearing completion on the nearby air rights parcel 12.
“While defendants would prefer not to involve Mr. Samuels in this lawsuit at all, they must assume… that plaintiffs will seek testimony from Mr. Samuels if this case proceeds to trial,” the motion states.
