# Opposition Brief — CSC Consulting, Inc. v. Tingley Systems, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0335%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1187 ## Text Supreme Court, U.S. ea FILED No. 99-765 a ULERA In The ee Supreme Court of the United States eae ¢ CSC CONSULTING, INC., Petitioner, TINGLEY SYSTEMS, INC., Respondent. ¢ On Petition For Writ Of Certiorari To The United States Court Of Appeals For The First Circuit oa RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ¢ G. Donovan CONWELL, JR. Counsel of Record GUILLERMO A. PERNAS, JR. Fow.er, Wuits, GILLEN, Bocas, VILLAREAL AND BANKER, P.A. Post Office Box 1438 Tampa, Florida 33601 (813) 228-7411 and EDWARD P. LEIBENSPERGER CHRISTA VON DER LUFT Nutter, McCLennen & Fisu, LLP One International Place Boston, Massachusetts 02110-2699 (617) 439-2000 Attorneys for Respondent COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (302) 342-2831 QUESTIONS PRESENTED FOR REVIEW Respondent disagrees with the questions presented by the Petitioner. The only issue presented for review is whether the First Circuit correctly applied the doc- trine of res judicata to the particular facts of this case. ii CORPORATE DISCLOSURE STATEMENT Pursuant to this Court’s Rule 29.6, Respondent, Tin- gley Systems, Inc., discloses that it is a privately held corporation, has no parent corporation, no subsidiary and no publicly held company owns any stock in Tingley Systems, Inc. ili TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW ........... i CORPORATE DISCLOSURE STATEMENT ........__ ii Pre CATERING ia 5 5 sia do's cack cc... iii PO Ae ARITIMOMITTED 66.) osha os nosed iv STATEMENT OF JURISDICTION................... 1 STATUTORY AND OTHER PROVISIONS NEE oie Ce at pomsumeerts OF Ie CASE... oc 1 REASONS FOR DENYING THE WRIT............. 7 I. The First Circuit’s Decision Is Consistent with FOP OE TUMOR a 66ko oo ve osc, 7 Il. The First Circuit Correctly Applied the Res PONE TIN 5 oon ee occ 12 III. The First Circuit Never Addressed or Resolved the Co-Conspirator Issue, and Thus, the Issue Should not be Reviewed by This Ae hGas Selb sho6 ode vind ss bs oa 16 iv TABLE OF AUTHORITIES Page FEDERAL CASES Allen v. McCurry, 449 U.S. 90 (1980).............. 12, 13 Bay State HMO Management, Inc. v. Tingley Systems, Inc., 181 F.3d 174 (ist Cir. 1999). ....... 9, 10, 11, 16 Calderon Rosado v. General Elec. Circuit Breakers, 805 Faas. beet COR Ce FI ak ch nde sdcianesanuoieeres 15 Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d See Cee SNe SPE 0.08 dada es akas hen cds tened eas 11 Devlin v. Transportation Communication Int'l Union, B70 Te Bas GAO Ce Bee ei cccencecRi * > ty = =, era ~ tes be A Ras eet’) | Li Ant pte App. 31 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS BAY STATE HMO MANAGEMENT, INC., C.A. NO. Plaintiff, 93-11283-RCL v. TINGLEY SYSTEMS, INC., Defendant. TINGLEY SYSTEMS, INC., i Plaintiff, v. BAY STATE HEALTH C.A. NO. MANAGEMENT, INC. £/ k/a 93-12230-RCL BAY STATE HMO MANAGEMENT, INC. and BLUE CROSS/BLUE SHIELD OF MASSACHUSETTS, INC., Defendants. / TINGLEY SYSTEMS, INC., Plaintiff, V. CSC CONSULTING INC., f/k/a CSC PARTNERS, INC., C.A. NO. Defendant. 95-10284 App. 32 SECOND AMENDED COMPLAINT (CONSOLIDATED CASE) INJUNCTIVE RELIEF REQUESTED Plaintiff, Tingley Systems, Inc. (“TSI”), sues the defendants, Bay State Health Management, Inc. f/k/a Bay State HMO Management, Inc. (“Bay State HM”) and Blue Cross and Blue Shield of Massachusetts, Inc. (“BCBSMA”), and alleges: Parties 1. TSI is a Florida corporation with its principal place of business in San Antonio, Florida. TSI creates, supports and * + * in their possession, custody or control, including but not limited to the POS and DSS software. TSI further requests that this Court (1) award TSI damages; (2) award TSI its attorney’s fees pursuant to 17 U.S.C. § 505, the cost of suit and interest; and (3) award TSI such other and further relief as the Court deems just and proper. Count V (Fraud - Bay State HM and BCBSMA) 75. TSI realleges and incorporates herein the allega- tions made in paragraphs 1 through 47 above. 76. Bay State HM and BCBSMA intentionally made certain representations to TSI as alleged in paragraphs 29-32 and 42 above. 77. Said representations were false. App. 33 78. Bay State HM and BCBSMA knew that said rep- resentations were false. —_ oy 4 Ta L PER Aas Mahan Sine poe ess van pata 5 PR EEE Oe POR See PR ee a es NG sw ittar 79. Bay State HM and BCBSMA made said represen- tations to TSI with the intent that TSI rely thereon. OR nite oe Sa es & Rt ns Se eee 80. TSI did rely upon said representations to its detriment. - ere ae iss piaishteh Shee 81. As a result thereof, TSI suffered damages in an amount to be determined at trial. WHEREFORE, TSI requests that this Court award TSI compensatory and punitive damages, attorney’s fees, costs, Count VI (Fraud — Bay State HM) 82. TSI realleges and incorporates herein the allega- tions made in paragraphs 1 through 47 above. . bs Sh Os SPA Bk OS a Pee 2 ir = Pie Re Dh Cte Sei ee P hin SP Pe a 83. Between April and December, 1990, Bay State HM negotiated with TSI to purchase rights to utilize the TSI software to develop its own software packages. Mar- gie Tingley sent a letter to James Carmona of Bay State | HM informing him that the right to use the TSI software for these purposes would cost $5,000,000, with the under- Standing that such an agreement would not affect TSI’s copyright in the software. 84. Jim Carmona represented to TSI on behalf of Bay State, in April or May, 1990 and in October of 1990, that a “Chinese wall” and clean room development approach were being utilized by Bay State to develop Bay State-owned software, and that no one who worked with App. 34 or had access to the TSI system would be developing Bay State-owned software. He represented that all Bay State- owned software was being created through “independent development”. 85. Despite the representation by Bay State that it was using “Chinese wall” and clean room development procedures to develop its own software, no such pro- cedures were used. Bay State programmers who worked regularly on the TSI software were the developers of BayStar. TSI’s file structures, which are part of the TSI software, were disclosed to CSC. Bay State gave CSC personnel access to confidential and proprietary informa- tion about the TSI system including, but not limited to, the file structures, data » > * CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 25th day of July, 1995, a true and correct copy of the foregoing was fur- nished by U.S. Mail to Andrew C. Griesinger, Esquire of Choate, Hall & Stewart, Exchange Place, 53 State Street, Boston, Massachusetts 02109-2891 and to Marc Temin, Esquire of Foley, Hoag & Eliot, One Post Office Square, Boston, Massachusetts 02109. /s/ Guillermo A. Pernas Attorney Porson eat Fe ip ta Age ea Rit a eek ht ag Re atte TR OVO Py DS App. 35 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Case No. 98-2334 Case No. 96-1574 TINGLEY SYSTEMS, TINGLEY SYSTEMS, INC., INC., Plaintiff-Appellant, Defendant-Appellant, v. v. CSC CONSULTING, BAY STATE HMO INC., f/k/a CSC MANAGEMENT, INC., PARTNERS, INC. ET AL., Defendant-Appellee. Plaintiffs-Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS BRIEF OF APPELLEE CSC CONSULTING, INC. Michael Arthur Walsh Eric J. Marandett Laura M. Scott Choate, Hall & Stewart Exchange Place, 53 State Street Boston, MA 02109-2891 (617) 248-5000 Attorneys for Appellee, CSC Consulting, Inc. App. 36 * * * stipulation; TSI instead proceeded (correctly) as if the Bay State Case and the CSC Case were not the same action.* In short, TSI knew perfectly well at the time it stipulated to the dismissal of the Bay State Case that the CSC Case was a separate and distinct civil action, and it acted in accordance with this knowledge.° Its argument on appeal that this Court should nevertheless disregard the separate identify of the CSC Case in construing the effect of the dismissal to which TSI stipulated in the Bay State Cases is undercut by its own conduct in entering into that stipula- tion. TSI’s argument that the CSC Case and the Bay State Case lost their status as separate actions upon the district court’s consolidation of the cases must be rejected for a third reason. TSI claims that “[t]here are sound policy reasons for treating the consolidated Bay State and CSC cases as a single action for res judicata purposes.” TSI’s * Had CSC been a party to the same action in which other parties sought the entry of a final judgment upon their claims, those parties would have been required to seek the entry of such a judgment by way of a motion under F. R. Civ. P. 54(b), instead of by stipulation. 5 In fact, the record before the district court was uncontradicted that the fact that the CSC Case and the Bay State Case were separate and district actions was brought to the attention of TSI’s counsel before TSI stipulated to the dismissal of the Bay State case. TS] was informed by counsel to Bay State that CSC’s signature upon the stipulation of dismissal in the Bay State Case “was not required . . . because [CSC] was a party toa separate, albeit consolidated action.” App. 2284. App. 37 Principal Brief at 24. Specifically, TSI claims that the con- solidation of the CSC Case with the Bay State Cases served the same interests which are Protected by the res judicata doctrine. Id. 24. This contention is premised upon TSI’s view that, due to the consolidation of the two cases, “[flor all practical purposes, CSC and Bay State were co- defendants in a single lawsuit.” Id. 25. One need look no further than the record of the Proceedings before the trial court in the consolidated cases for a complete rebuttal of this argument. Discovery in the Bay State Case was originally sched- uled to be completed by October 1, 1994. App. 148. Pur- suant to TSI’s motion, on September 21, 1994 the district court extended the date for the completion of all discov- ery in the Bay State Case to November 30, 1994. App. 48-49, 194. At the same time, the district court scheduled trial to commence on May 30, 1995. App. 49, 194-95. On December 2, 1994, after the discovery period in the Bay State Case had expired, TSI filed a motion to extend discovery in the case so that it could conduct certain additional discovery, and so that it could complete certain other discovery which it had already commenced. App. 50, 237-54. It characterized this discovery as “critical to TSI’s case.” App. 254. On December 12, 1994, almost two weeks after the expiration of the discovery period, TSI filed a motion seeking leave to take in excess of fifteen depositions in the Bay State Case. App. 51, 326-46. In this motion, TSI claimed that it needed to depose certain additional CSC employees, as well as a number of addi- tional Bay State employees, in order to prepare its case for trial. TSI characterized these additional depositions as “essential” and “crucial” to its case. App. 342. App. 38 By orders dated December 16 and December 21, 1994, respectively, the district court denied TSI’s motions to further extend the discovery period in the Bay State Case and for leave to take in excess of fifteen depositions. App. 347, 348. TSI then moved for reconsideration of these orders. App. 349-55. On February 9, 1995, with fifteen weeks remaining until trial was scheduled to commence in the Bay State Case and while its motion for recon- sideration of the district court’s orders terminating dis- covery in the case was pending, TSI filed its separate civil action against CSC. App. 86, 1622-61. TSI filed the CSC Case without ever having sought leave to amend its complaint in the Bay State Case in order to add CSC as a party defendant to that case. TSI’s claims against CSC were instead filed in a separate civil action. On February 21, 1995, TSI filed a motion in the CSC Case seeking leave to take expedited discovery in that case on the purported ground that such discovery was necessary to support a motion for a preliminary injunction which TSI said that it intended to file against CSC.° App. 86, 1671-96. Pursuant to this motion, TSI sought leave to conduct in the CSC Case, on an expedited basis, the very discovery which the district court had forbidden it from conducting in the Bay State Case. On February 27, 1995, TSI filed a motion seeking to consoli- date the CSC Case with the Bay State Case so that the discovery which it obtained on an expedited basis in the CSC Case could be used at the trial of the Bay State Case, © In fact, no motion for a preliminary injunction was ever filed in the CSC Case. App. 39 which at that time remained scheduled for May 30, 1995.7 App. 86. This record bespeaks TSI’s motivation for filing its claims against CSC in a separate action. By seeking leave to amend its complaint in the Bay State Case to add CSC as a defendant in that case, TSI would have avoided improper claim-splitting, but it would have been left bound by the court’s orders terminating discovery in the Bay State Case. TSI instead consciously chose a course of action which, though requiring it to improperly split its claims against CSC, allowed it to circumvent the district court’s discovery orders in the Bay State Case. In its order allowing TSI’s consolidation motion, the district court observed that [bjoth CSC and Bay State legitimately point out that TSI is attempting to obtain, through insti- tuting the CSC action, the discovery it was denied in the fall of 1994 in the TSI action. TSI did not Satisfactorily address the question posed at the June 5, 1995 hearing about why it chose not to seek leave to amend its complaint in the TSI action to add CSC as a party. App. 1888. TSI belatedly tries, on appeal, to contrive an explanation that would be responsive to the question which it was unable to satisfactorily address at the hear- ing before the district court upon its consolidation ” Thus, in support of its motion for expedited discovery in the CSC Case, TSI argued that “[iJf, as expected, the Court grants TSI’s Motion to Consolidate, it will be necessary for discovery to be expedited and completed in this action in advance of the trial in the Bay State actions. ... ” App. 1740-41. App. 40 motion. TSI now says that a motion to amend its com- plaint in the Bay State case to add CSC as a party defen- dant in that litigation would have been futile. TSI's Principal Brief at 29. Although, under F. R. Civ. P. 15(a), TSI could not, as a matter of right, have amended its complaint in the Bay State Case to add CSC as a defendant to that case in December, 1994 (which is when it now claims to have learned of its cause of action against CSC, TSI’s Principal Brief at 28), it most certainly could have moved for leave to amend its complaint at that juncture.® TSI’s suggestion that, as of December, 1994, it was too late even to move to amend its complaint in the Bay State Case is, once again, flatly contradicted by events which actually occurred. On February 17, 1995 — two months after it claimed to have learned of the facts underlying its suit against CSC and one week after it filed its separate case against CSC — TSI in fact filed a motion to amend its complaint in the Bay State Case. App. 11, 394-406. That motion, which sought to assert additional claims against the defendants in the Bay State Case, was allowed. App. 1916-23. It is difficult to accept TSI’s contention that, as of December, 1994, it was too late for TSI to file a motion requesting leave to amend its complaint to add CSC as a defendant to the Bay State Case, when, two months later, it was not too late for TSI to file a motion to amend its complaint to 8 It seems unlikely that the defendants in the Bay State Case, who presumably would have welcomed a co-defendant to share the burden of defending the case and the risk of exposure to liability (not to speak of the concomitant contribution to any settlement of the case), would have opposed such a motion. App. 41 allege additional claims against the existing defendants in that case. It is equally difficult to understand why, as of December, 1994, it could have been too late for TSI to seek to add CSC as a defendant to the Bay State Case, when, two months later, it was not too late for TSI to file an entirely separate case against CSC and thereupon move to consolidate this newly filed case with the Bay State Case for purposes of a trial then scheduled to com- mence only three months later. TSI cannot have it both ways. Having chosen to institute a new civil action against CSC for the purpose of achieving litigation objectives that could only be achieved by virtue of the fact that its suit against CSC was separate and district from the Bay State Case (and therefore not subject to the discovery orders entered in the Bay State Case), TSI cannot now plausibly argue that the consolida- tion of the CSC Case with the Bay State Case served the res judicata doctrine’s policy of “ ‘reliev[ing] parties of the cost and vexation of multiple lawsuits, [and] conserv[ing] judicial resources.’” TSI’s Principal Brief at 24 (quoting Apparel Art, 48 F.3d at 583). The filing of TSI’s separate action against CSC, in lieu of an amendment to TSI’s complaint adding CSC as a defendant to the Bay State Case, most certainly did not serve the interest of prevent- ing repetitious lawsuits. To the contrary, that action gave rise to a repetitious lawsuit. Nor did the filing of a sepa- rate action against CSC, in lieu of adding CSC as a defendant to the Bay State Case, conserve judicial resources. To the contrary, the filing of the CSC Case was the device by which TSI sought to conduct the additional discovery which it regarded as “essential” and “crucial” in the Bay State Case. The filing of the CSC Case therefore App. 42 required the trial court to supervise what was in effect an entirely new round of discovery for use in the Bay State Case. These deleterious effects of the filing of TSI’s claims against CSC in a separate action did not somehow disap- pear simply because the CSC Case was consolidated with the Bay State Case five months later. In conclusion, there is no merit to TSI’s argument that the policies underlying the res judicata doctrine would not be served by the doctrine’s application to TSI’s claims against CSC in this case due to the consolidation of the CSC Case with the Bay State Case. To the contrary, those policies cry out for such an application of the doctrine in the CSC Case notwithstanding the trial court’s consolidation order. The district court correctly deter- mined that the CSC Case was a separate action notwith- standing its consolidation with the Bay State Case. B. The District Court Correctly Determined That CSC Was In Privity With Bay State Within The Meaning Of The Res Judicata Doctrine. 1. The District Court Correctly Determined That CSC And Bay State Were Privies For Res Judicata Purposes Because They Were Alleged To Be Co-Conspirators And Co-Perpetrators Of Joint Harms. “Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same-cause of action.” Montana v. United States, 440 U.S. 147, 153 (1979) (emphasis added) (citations omitted). Thus, “a non-party defendant [in a subsequent case] can assert res judicata so long as it is in ‘privity’ with the App. 43 named defendant [in the earlier case].” Russell v. Sun- America Sec., Inc., 962 F.2d 1169, 1173 (5th Cir. 1992) (citations omitted). CSC is a privy of Bay State within the meaning of the res judicata doctrine under the principle of nonmutual claim preclusion. That Principle originated in cases decided by the Third Circuit Court of Appeals. In Gam- bocz v. Yelencsics, 468 F.2d 837 (3d Cir. 1972), the Third Circuit construed its earlier ruling in Bruszewski v. United States, 181 F.2d 419 (3d Cir.), cert. denied, 340 U.S. 865 (1950), which “held that res judicata may be invoked against a plaintiff who has previously asserted essentially the same claim against t * * App. 44 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS BAY STATE HMO , MANAGEMENT, INC., , C.A. NO. ae ; 93-11283-RCL Plaintiff, v. TINGLEY SYSTEMS, INC., Defendant. TINGLEY SYSTEMS, INC., C.A. NO. Plaintiff, : 79-12230-RCL v. BAY STATE HEALTH MANAGEMENT, INC. f/k/a BAY STATE HMO MANAGEMENT, INC. and BLUE CROSS/BLUE SHIELD OF MASSACHUSETTS, INC., Defendants. : (Filed Dec. 19, 1994) PLAINTIFF, TINGLEY SYSTEMS, INC.’S, MOTION TO TAKE IN EXCESS OF FIFTEEN (15) DEPOSITIONS AND SUPPORTING MEMORANDUM Plaintiff, Tingley Systems, Inc. (“TSI”), pursuant to Federal Rules of Civil Procedure 26(b)(2) and 30(a)(2), and Local Rule 26.1, moves this Court for the entry of an order allowing TSI to take in excess of fifteen (15) deposi- tions. The motion should be allowed because (1) This action is complex. It involves two consolidated cases, App. 45 involving multiple parties, numerous legal claims and nearly 50,000 documents. Nearly 100 witnesses and mul- tiple computer consulting firms have been identified who played a part in the misappropriation of TSI’s proprietary software and related system structure and architecture. Three different computer systems, known as POS, DSS and Baystar, valued at twenty six million dollars * a * [Motion denied without prejudice to its being renewed once the court has ruled on Tingley’s Motion to Compel Production of Documents. /s/ Reginald C. Lindsay 12/21/94 App. 46 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 98-2334 No. 97-1574 TINGLEY SYSTEMS, INC., TINGLEY SYSTEMS, INC., Plaintiff, Appellant, Defendant, Appellant, v. v. CSC CONSULTING, INC., BAY STATE HMO f/k/a CSC PARTNERS, MANAGEMENT, INC., INC. ET AL., Defendant, Appellee. Plaintiffs, Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS REPLY BRIEF OF APPELLANT, TINGLEY SYSTEMS, INC. G. Donovan Conwell, Jr. (Fla. Bar No. 371319) Guillermo A. Pernas, Jr. (Fla. Bar No. 0000574) Fowler, White, Gillen, Boggs, Villareal & Banker, P.A. 501 E. Kennedy Blvd., Suite 1700 Tampa, Florida 33602 (813) 228-7411 App. 47 Edward P. Leibensperger (BBO#292620) Christa von der Luft (BBO#600362) Nutter, McClennen & Fish, LLP One International Place Boston, Massachusetts 02110-2699 (617) 439-2000 Attorneys for Appellants » * * F.2d 768, 771 n. 7 (5th Cir. 1982); Cablevision Sys. Dev. v, Motion Picture Assn., 808 F.2d 133, 136 n. 3 (D.C. Cir. 1987). Tingley explained this in its Initial Brief and CSC, once again, was unable to, and did not, respond to it. Tingley contends that the Order consolidating the Bay State and CSC cases into one proceeding and Tin- gley’s reliance on that Order, are sufficient reasons for treating the Bay State and CSC cases as one action for res judicata purposes. But there are additional reasons for giving them such treatment, which are found in the poli- cies served by the res judicata doctrine. Res judicata, after all, is a judge-made doctrine created and applied to serve specific purposes. Diversified Foods, Inc. v. First Nat’i Bank of Boston, 985 F.2d 27, 31 (Ist Cir. 1993). Tingley contends that those purposes were served by consolidating the cases into one proceeding. (Initial Brief, pp. 24-25). CSC never disagrees with Tingley’s argument that consolidating cases into one proceeding serves the judi- cial goals sought to be achieved by the res judicata doc- trine. Instead, CSC argues that those goals were not App. 48 served in this case because Tingley allegedly filed a sec- ond lawsuit and consolidated them for an improper pur- pose, i.e., to circumvent discovery orders. To make this argument, however, CSC omitted and misstated key facts relevant to CSC’s theory. CSC’s argument is premised upon CSC’s conclusion that Tingley must have believed when it sued CSC that it _ could not get important discovery in the Bay State case, and that the CSC lawsuit would enable Tingley to get that discovery. CSC concludes Tingley had such a belief, because on December 16 and 21, 1994, the district court denied Tingley’s motions for extending the discovery cutoff and for taking additional depositions. (CSC Brief, p- 15). CSC, however, misstated the dates of Tingley’s discovery motions. Tingley’s motions were served on November 23 and November 30, 1994, respectively (R.256 and 346). CSC’s references to those motions being filed “on December 2, 1994, after the discovery period in the Bay State case had expired,” and “on December 12, 1994, almost two weeks after the expiration of the discovery period” is misleading, because it suggests that Tingley had the Gifford documents when it submitted its discov- ery motions. (Brief, p. 15). Tingley did not obtain the Gifford documents until December 9, 1994, well after Tingley served its discovery motions in November. The timing of when Tingley received the Gifford documents and when it prepared and sent its discovery motions is important to Tingley’s December 30, 1994 motion for reconsideration and Tingley’s state of mind regarding the probable outcome of that motion. Tingley’s motion for reconsideration was based primarily upon the just-produced Gifford documents and Tingley believed App. 49 that this newly obtained and important information would persuade the court to allow Tingley’s discovery motions. (R349-393). This would not have been the case if Tingley already had the Gifford documents when it ini- tially submitted its discovery motions in November. CSC’s use of the December 12 date to suggest that Tingley had the Gifford documents when it brought its November 30 motion to take more than 15 depositions is misleading. Curiously, CSC also failed to point out to this Court that the December 21 order denying Tingley’s discovery motions expressly provides that it is “without prejudice to its being renewed” after the court ruled on Tingley’s motion to compel production of documents. (R.348). The court did not rule on Tingley’s motion to compel until June 5, 1995. (R.0023). In light of these facts, Tingley did not believe on February 9, 1995, when it sued CSC, that the door had been closed on discovery in the Bay State cases. When Tingley sued CSC, both Tingley’s motion for reconsidera- tion and its motion to compel production of documents were pending. Tingley fully expected the court to grant these motions. With the benefit of knowing all of the facts, this Court can see that CSC’s assertion that the door was closed on discovery in the Bay State case simply is not true and CSC’s conjecture that Tingley brought a second suit to circumvent discovery orders is baseless. CSC’s speculation that Tingley filed another lawsuit against CSC, solely to avoid discovery orders entered by the court in the Bay State case, is absurd. If Tingley’s purpose in filing a second lawsuit against CSC was to App. 50 avoid discovery Orders in the Bay State case, then Tin- gley would not have filed the CSC suit in the same court as the Bay State case, knowing that it would have to inform the court that the CSC and Bay State cases were related, thereby ensuring that the CSC case would be assigned to the same judge who entered the discovery Orders. Nor would Tingley then file a motion seeking to consolidate the cases so that they would become a consol- idated action before the same judge who entered the discovery Orders. But that is exactly what Tingley did. The fact that Tingley intentionally sought to have the CSC case brought before the same judge who entered the discovery Orders and then consolidated with the same case in which those discovery Orders were entered, proves the absurdity of CSC’s accusation that Tingley was maneuvering to avoid those discovery Orders. CSC’s summary judgment motion, like its Answer Brief in this Appeal, accused Tingley of filing its lawsuit against CSC to circumvent the December 16 and 21 dis- covery Orders. Significantly, the district judge whose Orders CSC claims Tingley tried to avoid, disregarded this spurious accusation and did not even bother to address it in his Order granting CSC’s motion for sum- mary judgment. Instead of adopting CSC’s argument, the district court judge explained that his ruling seemed “harsh” and that he was “constrained” by law to reach it. These are not words of a judge who thinks Tingley has done wrong and is getting what it deserves by an adverse summary judgment. On page 17 of its Brief, CSC tried to make it look like the district court judge agreed with CSC’s accusations of Tingley. The statement that “TSI did not satisfactorily App. 51 address the question posed at the June 5, 1995 hearing about why it chose not to seek leave to amend its com- plaint in the TSI action and add CSC as a party,” actually was made by the magistrate judge. In any event, the statement is inconsequential. With all due respect to the Magistrate Judge, that question never was posed to Tin- gley at the June 5, 1995 hearing. (R.1125-1410). In any event, Tingley addressed that issue in its reply to CSC’s Opposition to the motion to consolidate. Tingley explained there that the case against CSC was premised primarily upon the Gifford documents that CSC had withheld from discovery. (R.1014-15, see also, R. 2163). CSC, by withholding these incriminating documents until after the close of discovery and until the eleventh hour of the Bay State case, put Tingley in a procedural predica- ment and significantly decreased the likelihood that the court would allow Tingley to amend its pleadings to add CSC as a party. Id. Tingley’s safest course of action was to sue CSC and then seek to consolidate. CSC also pondered why Tingley would move to amend its complaint against Bay State in February, 1995, if Tingley thought it was too late in February to move to amend to add CSC as a party. Tingley answered that question in its Initial Brief (pp. 28-29). The Bay State amendment was based upon evidence Tingley learned in discovery and Tingley believed it would not require fur- ther efforts by the parties. (R.401). Moreover, it merely added nine new paragraphs to Tingley’s already existing complaint against Bay State. (R.401). This is significantly different than bringing a multi-count complaint against a new party. Under the criteria that govern amendments of pleadings, the court was much more likely at that late App. 52 date to permit such a limited amendment against an existing defendant than to allow the addition of a new party and the assertion of multiple new claims against that party. Finally, CSC argued on page 20 of its Brief that Tin- gley’s filing of a second action against CSC and moving to consolidate it with the Bay State case did not serve the interests of preventing repetitious lawsuits and conserv- ing judicial resources. This argument is fatally flawed because it incorrectly assumes that if the court had allowed Tingley to amend to add CSC as a party, then the judicial labor would have been less than it was when Tingley sued CSC in a second case, which the court then consolidated. Except for the motion to consolidate, all of the motions filed in the CSC case would have been filed in the Bay State case, if CSC had been added as a party there. The way in which the court heard the motions would not have changed either. As a convenience to counsel, the court scheduled hearings in both cases to take place at the same time, even before the cases were consolidated (R.1007, 2126). Moreover, the need for the court to “surpervise . . . a new round of discovery” (CSC’s Brief, p. 20) would exist even if Tingley had been permitted to amend to add CSC as a party. CSC insisted that it needed its own discovery from Tingley. (R.1700, 1704, 2174, 2176). No matter how Tingley brought CSC into the case, CSC would have sought its own discovery. Nor can CSC assume that the district court would not have allowed Tingley discovery as to CSC, notwithstand- ing its December discovery Orders, if Tingley had amended its complaint and added CSC as a party. When multiple new claims are asserted against a new party, a App. 53 court normally would allow discovery as to the new claims. This is likely what would have happened here, as evidenced by the fact that, after the court allowed Tingley to amend its complaint against Bay State in 1995 to add a fraud count, the court ordered further discovery on the new allegations. (R.0029-0030). There is simply no support for CSC’s argument that the purposes of res judicata were not served by consol- idation here or that Tingley did anything improper. CSC, having been caught by the Gifford documents, obviously is the wrongdoer here. CSC’s underlying tortious con- duct, followed by its concealment and withholding of the Gifford documents (R.250, 351, 2150, 2163, 1309-10), leaves it in a poor position to argue that this Court is doing the right thing by affirming the judgment in CSC’s favor. CSC’s manipulation of the facts to make Tingley look like the wrongdoer have not improved CSC’s posi- tion. II. Bay State and CSC Were Not in Privity Within the Meaning of the Res Judicata Doctrine. “Privity,” in a broad sense, is a flexible tool used by courts to accomplish the purposes of the res judicata doctrine. Whether the parties are found to be in privity turns ultimately on whether they have a sufficiently close relationship such that the court believes they should have been sued in the same action, if they were sued at all. As this Court said in In re El San Juan Hotel, 841 F.2d 6 (1st Cir. 1988), the question to be answered is whether “the new party can show good reasons why he should have App. 54 been joined in the first action and the old party cannot show any good --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0335%3A2. Public record. Not legal advice.