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DeCurtis v. Visconti, Boren & Campbell, Ltd.

Supreme Court of Rhode Island

January 20, 2017

Sergio A. DeCurtis
v.
Visconti, Boren & Campbell, Ltd. et al.

         Providence County Superior Court (PC 12-4078) Associate Justice William E. Carnes, Jr.

          For Plaintiff: Michael B. Forte, Jr., Esq.

          For Defendants: Stephen J. Brouillard, Esq. Theresa L. Sousa, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          MAUREEN McKENNA GOLDBERG, ASSOCIATE JUSTICE

         This case came before the Supreme Court on November 2, 2016, on certiorari from the Superior Court, seeking review of a discovery order entered on October 2, 2014, compelling production of any antenuptial or postnuptial agreements drafted, prepared, or negotiated by the defendant, Richard A. Boren (Attorney Boren), from 2005 through 2009 and in 2013, while he was employed at the defendant law firm, Visconti, Boren & Campbell, Ltd. (VBC), (collectively, defendants). Before this Court, the defendants contend that the documents sought exceed the scope of permissible discovery, as provided by Rule 26 of the Superior Court Rules of Civil Procedure, and are protected under the attorney-client privilege, the marital privilege, and the work product doctrine. For the reasons discussed herein, we affirm the discovery order in its entirety.

         Facts and Travel

         In 2000, plaintiff, Sergio A. DeCurtis (plaintiff or DeCurtis), retained Attorney Boren to draft an antenuptial agreement. DeCurtis and his then-fiancée, Michelle Tondreault (Tondreault), executed the antenuptial agreement on March 22, 2000, and were married on March 28, 2000. They did not live happily ever after, and Tondreault filed for divorce in 2005. The divorce petition was dismissed in a negotiated settlement that required DeCurtis and Tondreault to execute a postnuptial agreement. Attorney Boren drafted the postnuptial agreement for the couple, which was executed in November of 2005. The marriage nonetheless failed.

         In June 2010, Tondreault again filed for divorce, based on irreconcilable differences that led to the irretrievable breakdown of the marriage.[1] The record reveals that the marital estate was valued at several million dollars, "the vast majority of that having been acquired during the period of coverture." On June 21, 2011, a pretrial conference was held in the Family Court. The Family Court justice explained that, after reviewing the relevant case law, statutes, and the Uniform Premarital Agreement Act, he was satisfied that the antenuptial and postnuptial agreements did not exclude any income or appreciation of assets derived by DeCurtis during the marriage from the marital estate. Thereafter, DeCurtis exhibited confusion when he was asked to articulate his understanding of this issue: "It means that my prenuptial and the post-nuptial agreement allowed me to take my income, and whatever portion of it was going to be kept separate could be kept in a separate account so it was protected." The Family Court justice explained that his finding was just the opposite. The Family Court justice continued by warning the litigants:

"[I]f you attempted to convince the Supreme Court or this particular jurist that your income derived during the period of marriage is excluded, * * * I don't think you're going to be successful before this particular jurist; nor, is it the Court's interpretation based upon its dealings with the Supreme Court which it has over the last [thirty-seven] years, would they entertain that thought either."

         The Family Court justice's statements, coupled with the extent of DeCurtis's pecuniary exposure, and the advice of counsel, led DeCurtis to settle his dispute with his wife and enter into a property settlement agreement with Tondreault on June 23, 2011. Tondreault was awarded $2, 750, 000 based on the equitable distribution of the assets and $1, 500, 000 in alimony payable over fifteen years.

         On August 8, 2012, plaintiff instituted an action in Superior Court alleging attorney malpractice against defendants, contending, inter alia, that Attorney Boren negligently drafted the antenuptial and postnuptial agreements and failed to advise him that he should refrain from commingling his premarital assets with the marital estate, causing him significant loss. On October 23, 2012, plaintiff propounded the following requests for production of documents upon defendants:

"Request No. 49:
"Any and all prenuptial or premarital agreements drafted, prepared and/or negotiated by Attorney Boren from 1999 to the present and continuing up to the time of trial, with all client identifying information redacted.
"Request No. 50:
"Any and all postnuptial agreements drafted, prepared and/or negotiated by Attorney Boren from 1999 to the present and continuing up to the time of trial, with all client identifying information redacted."

         The defendants objected, arguing that the requests sought "or could be interpreted to seek attorney work product or information related to other clients of Attorney Boren or [the law firm] not related to the plaintiff as being privileged, and subject to Rule of Professional Conduct 1.6, and beyond the scope of Rule 26." The plaintiff moved to strike defendants' objection and compel further responses; the motion was heard before a Superior Court justice on November 18, 2013.

         The plaintiff argued that evidence of subsequent remedial measures is admissible to prove negligence in Rhode Island, in accordance with Rule 407 of the Rhode Island Rules of Evidence, and that he was entitled to explore whether the language used in plaintiff's antenuptial and postnuptial agreements was altered in subsequent agreements drafted by Attorney Boren. The plaintiff anticipated that changes in those documents would have been made sometime in 2011, after Attorney Boren learned that the agreements he drafted for plaintiff failed to provide the protection his client allegedly was promised. Based upon the fact that the Family Court pronouncement did not occur until 2011, the trial justice granted plaintiff's motion in part, limiting production to the years 2010 through 2012. The trial justice also issued a protective order and required comprehensive redaction of the documents.

         The defendants produced a single postnuptial agreement from 2010. The plaintiff renewed his motion to compel as it related to Request Nos. 49 and 50, contending that "[i]t [was] crucial [for him to] ascertain the language used by Attorney Boren in prenuptial and postnuptial agreements [designed] to protect [the] earnings and assets [of a spouse] acquired during the marriage before and after [the Family Court justice's] ruling on June 21, 2011 * * *." On September 26, 2014, the Superior Court justice acknowledged that defendants had conducted a survey as to the number of antenuptial and postnuptial agreements drafted by Attorney Boren from 2005 to 2009 and in 2013. Four antenuptial agreements and one postnuptial agreement from 2005 to 2009 and one antenuptial agreement in 2013 were produced. The Superior Court justice ordered defendants to provide these documents to plaintiffs, duly redacted and subject to a protective order. The defendants sought review in this Court by way of a petition for writ of certiorari. We granted the petition on June 15, 2015.

         Issues on Appeal

         We note at the outset that this case is before the Supreme Court on an interlocutory review of a discovery order. The petition for ...


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