Scope of Discovery at Issue in Same-Sex Marriage Case

, The Legal Intelligencer


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Lawyers for the administration repeated in their emailed responses that it would be premature to meet before discovery was scheduled to be due, which was Monday.

"We do not understand the commonwealth defendants' position that a meet and confer would be premature. If anything, we think it is overdue," wrote John Stapleton, a lawyer at Hangley Aronchick representing the plaintiffs, in an email Dec. 2.

"Absent further explanation from you, many requests appear designed to accomplish no purpose other than harassment of plaintiffs and do not appear reasonably calculated to lead to the discovery of admissible evidence," Stapleton wrote. "We remain open to discussing with you these and other requests as to why the commonwealth defendants believe they are entitled to such information and documents, but without explanation, we otherwise see no basis for the requests. Rather than engage in costly letter-writing and motion practice, we would prefer to have a conversation with you to understand your position on these requests."

Maureen McBride, a Lamb McErlane lawyer representing the state, responded, "Please understand that we are not refusing to meet and confer with you about discovery; in fact, we also believe that a conversation regarding discovery may be useful." She explained that scheduling depositions would be more easily done after the written discovery was delivered Monday.

"While we appreciate your desire to move things along quickly, we believe our approach is consistent with traditional discovery timing, even on an expedited schedule," McBride said.

Following the letter with attached emails submitted to the court by Walczak on Monday, the judge issued an order scheduling a conference call with all the lawyers today.

He canceled the call after receiving a letter from William Lamb of Lamb McErlane, in which Lamb explained that "defendants had every intention of reaching out to plaintiffs to arrange for a meeting ... as early as tomorrow, to discuss the substance of discovery responses after those responses were submitted."

"This schedule, of course, would have allowed the parties the ability to discuss the matter in concrete, rather than theoretical, terms," he said.

The lawyers have now spent a combined three hours, over Tuesday and Wednesday, conferring over the phone, Walczak said Wednesday.

He described the conversations as cordial and said that the administration had agreed to narrow some of the issues. But, there remain some outstanding issues, including the questions about previous relationships, the identity of biological parents, and psychological evaluations.

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