It’s not a good look for a successful and well-regarded real estate mogul.
Stephen Weiner, known for developing the Mandarin Oriental hotel in Boston and shopping centers throughout the suburbs, and his son Adam deleted e-mails and text messages as they faced a potential lawsuit from John Fish, their partner in a scuttled luxury condominium project.
That’s the word from Suffolk Superior Court Judge Kenneth W. Salinger, who said in decision on Monday that the Weiners destroyed evidence that they “knew or reasonably should have known” might be relevant in possible litigation after the abrupt 2019 cancellation of an $800 million tower Fish and the Weiners were set to build on Boylston Street.
Retaining evidence is a pivotal 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 spoliation of evidence can be presented to the jury when the lawsuit goes to trial.
Salinger’s action is the latest turn in the more than three-year legal fight between Fish and Steve Weiner, two of the most prominent players on the local real estate scene and, once, good friends. The central question in the standoff is which side walked away from the deal.
Fish argues that Weiner was reluctant to personally backstop $400 million in financing for the project, and unilaterally announced Aug. 16, 2019, that it would not go forward. Fish sued two months later, alleging tens of millions of dollars in losses from the Weiners’ action. The Weiners counter that Fish was the one who wanted to back out.
Fish invested personally in the 1000 Boylston project, near the Hynes Convention Center, and his Suffolk construction company would have built the tower. Steve Weiner and his son, who had taken the lead on the project, were responsible for lining up financing.
The Weiners have said the suit is without merit and are pursuing 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 Aug. 20, 2019, when Fish sent the Weiners a “dispute notice” that he claims made clear he might sue, and Oct. 23, 2019, when the lawsuit was filed.
According to the motion, “Stephen Weiner deleted every Project-related e-mail, voicemail, and text message that he received or sent from August 2019 until after the complaint was filed. Adam Weiner, too, systematically deleted project-related e-mails and text messages. And on October 5, 2019 — the very day that Mr. Fish’s counsel set as the deadline for the Weiners to accept Fish’s proposal or face litigation — Adam Weiner permanently erased all of the data on his cell phone.”
Not a good look.
In opposing Fish’s motion, the Weiners’ attorneys argued that their clients didn’t believe a lawsuit by Fish was likely and that deletion of the electronic communications was in keeping with their normal business practice.
“ln short: the Weiners had no duty to preserve emails and text messages over the relevant time period because they did not reasonably anticipate litigation,” the lawyers wrote.
Salinger initially ruled in the Weiners’ favor.
On Jan. 6, he wrote that it was reasonable for them not to consider a lawsuit “very likely,” at least until Oct. 1, 2019.
That’s the day when Fish’s lawyers sent a letter to the Weiners’ legal team with a settlement offer and the warning that Fish “would be compelled to recover [his losses] through other mechanisms” if an agreement wasn’t reached by Oct. 5.
What about the stretch between Oct. 1 and Oct. 23? Salinger said Fish hadn’t shown he had “suffered any prejudice from spoliation 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 “very likely” standard in rejecting Fish’s motion. Instead, Associate Justice Vickie L. Henry sent the case back to Salinger and said he should determine whether the Weiners “knew or reasonably should have known that evidence might have been relevant to possible action.”
Within hours, Salinger issued a revised order. “Applying this different standard, the Court finds that the defendants spoilated evidence between Aug. 20, 2019, and Oct. 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 an e-mail.
Dot Joyce, a spokeswoman for the Weiners, said Salinger had gotten it right the first time.
“More importantly, there is no evidence supporting John Fish’s claims, so instead he is resorting to creative legal theater,” she said in an e-mail. “We are confident in our case as we move forward with discovery that includes real evidence regarding our own claims against Fish.”
Fish is set to be deposed in the lawsuit on Thursday and Friday. Steve Weiner’s deposition hasn’t been scheduled, while his son’s deposition has already been completed.
Most players in the city’s business world shake their heads in disbelief that this lawsuit hasn’t been settled out of court. “Bad for Boston” is the common refrain.
Maybe the not-good look of this latest twist will prompt another round of negotiations.