Attorneys for Suffolk Construction CEO John Fish asked a Superior Court to sanction developers Adam and Stephen Weiner for deleting emails and texts related to a failed billion-dollar condominium project in Back Bay.
After a business dispute between the two sides escalated in October 2019, developer Adam Weiner performed a factory reset of his cell phone and gave it to his son as a toy.
“Adam Weiner admitted that the factory reset deleted all of his cell phone data, and that he conducted the factory reset intentionally even though he knew the data was not saved anywhere else,” attorneys from Choate, Hall & Stewart wrote. “Common sense confirms that this was no accident.”
The details are contained in filings in the $100 million lawsuit over the demise of Massachusetts Department of Transportation’s parcel 15 air rights development. Suffolk sued Boston-based Weiner Ventures alleging that “gross mismanagement” led to the collapse of the 1000 Boylston St. project in 2019.
The filings detail the acrimonious break-up of a decade-long joint venture between Suffolk and Weiner Ventures on the complicated Back Bay air rights project. Adam Weiner worked at Suffolk for five years before joining his family’s real estate firm in 2006, including two years as Suffolk CEO John Fish’s right-hand assistant, according to a 2013 Boston Globe profile.
Developers received Boston Planning & Development Agency approval for a luxury condominium tower over the Massachusetts Turnpike near the Hynes Convention Center in 2018. The two sides had already invested over $83 million in the project when it collapsed, according to court filings.
Suffolk attorneys have asked the court to instruct a potential jury that the Weiners deleted evidence that would have been unfavorable to their case.
Disagreements surfaced between the two sides in August 2019 as they were nearing a financing agreement and Suffolk had begun mobilizing equipment at the site.
On Aug. 16, Weiner Ventures’ public relations agency issued a statement to the media that the project was dead. On Aug. 20, Suffolk sent a notice to Weiner Ventures of a major dispute under the terms of the joint venture’s operating agreement.
For the next few weeks, Fish sought to revive the project and recruit additional investors. On Oct. 1, Fish’s attorney emailed Weiner Ventures asking them to accept a new financial proposal by Oct. 5.
“When the Weiners did not accept the proposal’s terms by Oct. 5, Adam Weiner knew he might soon face a lawsuit from Mr. Fish. But, that very same day, he wiped his phone anyway, and then ensured that the data could never be recovered,” attorneys Paul Popeo, G. Mark Edgarton and Kevin Quigley of Choate, Hall & Stewart LLP wrote in a motion seeking sanctions.
Adam Weiner bought a new cell phone Oct. 5 and performed a factory reset of the old phone without backing up its data, according to testimony. After Suffolk attorneys requested that Weiner produce the cell phone for a forensic examination in May 2021, he responded that he had given it to his son for a toy and was unable to locate it.
Developer Stephen Weiner, Adam’s father, performed a factory reset of his own cell phone in July 2019, and testified that he regularly deletes all of his emails, texts and voicemails.
Attorneys for Weiner Ventures assert that the developers were not required to preserve the emails and texts.
“In short, the Weiners had no duty to preserve emails and text messages over the relevant time period because they did not reasonably anticipate litigation,” Goodwin Procter attorneys Mark Tully, Brian Wesley and John Barker wrote in an opposition motion.
During the discovery portion of the case, the two sides have been required to produce 70,000 documents in addition to “hundreds of thousands” of documents provided by third parties.
“Plaintiffs have not identified a single scrap of evidence suggesting they are missing any document or communication that was deleted by the defendants between August and October 2019, the period in question,” the opposition motion stated.