By Joe Dwinell
An Appeals Court justice has backed a decision issued by Superior Court Judge John C. Cratsley ordering rocker Tom Scholz, the founder of the band Boston, to turn over more than 1,000 e-mails to and from his "business team."
Under that order, issued by Cratsley in January, Scholz was required to produce e-mails to and from his publicist, manager, wife and others whom he claimed were his "advisers" that he had withheld as "privileged" as part of his lawsuit against the Herald.
Cratsley is presiding over the case.
Scholz's legal team fought against the release of the e-mails — including appealing the decision to a single justice of the state Appeals Court.
Scholz's lawyers argued to the Appeals Court that the Herald "painfully" misunderstood the law and that their client could shield communications, including e-mails, sent or received by non-employees whom he characterized as part of his "business team."
However, state Appeals Court Justice Cynthia J. Cohen disagreed, ruling that "the judge committed no legal error or abuse of discretion in ruling that the privilege did not apply" and that the e-mails had to be turned over by Scholz to the Herald's lawyers.
Cohen ruled Wednesday that the requirements of the attorney-client privilege were not met by Scholz.
"Even if the third parties in question properly may be viewed as the plaintiff's agents for purposes of communication with his attorneys, it has not been demonstrated that their involvement was necessary for effective communication between the plaintiff and his attorneys," Cohen wrote.
"The involvement of the third party must be nearly indispensable or serve some specialized purpose" to have the messages fall under such a protection, she added.
Cohen's decision is the culmination of a multi-month legal battle over Scholz's withholding of the e-mails.
"The court rejected Mr. Scholz' effort to shield over 1,000 e-mails with his publicist, his manager and others under the guise of the attorney-client privilege. We believe the court was clearly correct to do so," said the Herald's lawyer, Jeffrey Robbins.
Scholz's lawyer, Nick Carter, did not return calls left by the Herald.
Scholz is suing the Herald over three 2007 "Inside Track" columns that he claims imply he drove fellow band member Brad Delp to commit suicide.
The Herald's lawyers countered in a motion to dismiss the case that "Scholz's claims are patent nonsense."
"The articles do not state that Scholz is to blame for Delp's decision to take his life ... nor do they ‘suggest' any such thing," the paper's attorneys wrote.
In a separate decision issued yesterday, Justice Cohen ruled that Cratsley, who had dismissed some of Scholz's claims arising from Herald articles covering the lawsuit on the basis of the fair report privilege, should review his decision and make additional findings before dismissing those claims.