The Massachusetts Appeals Court recently issued a useful reminder that aggressive discovery positions risk negative consequences far beyond facing motions to compel. In Old Ironsides Energy LLC v. Marsh & McLennan Agency LLC[1], the court affirmed summary judgment against a plaintiff seeking approximately $20 million in damages after concluding that the plaintiff lacked admissible expert testimony necessary to prove its claimed damages. The $20 million kicker? Expert testimony would have been admissible if the plaintiff had provided certain evidence to its expert witness and the other side—but earlier in the case, the plaintiff intentionally withheld that evidence as a litigation tactic. The case arose out of a dispute between a private equity firm (plaintiff) and its insurance broker (defendant). The plaintiff contended that it had requested insurance coverage that would protect it against legal expenses incurred in responding to an SEC investigation, but that the broker procured coverage that protected only individual officers and not the company itself. When an SEC investigation later materialized, the plaintiff allegedly incurred substantial legal fees that were not covered by insurance and sued the broker. What makes the decision particularly interesting is not the underlying insurance dispute—it is the discovery history. Discovery Tactics During discovery, the defendants sought attorney billing records and related materials supporting the plaintiff's damages claim. The plaintiff produced only invoice cover sheets and withheld the underlying billing entries on privilege grounds, asserting that the SEC matter remained active and that production could present risks in the investigation. It nonetheless produced a report from its own expert that opined on the reasonableness of the claimed attorney’s fees (even though the expert did not review the underlying invoices). Four years later in the litigation[2], when the defendant’s expert pointed out that the plaintiff’s expert did not have adequate support for his opinion, the plaintiff hastily gave the withheld fee invoices to its expert and the other side. Defendant moved to exclude the late discovery and plaintiff’s expert’s related opinion. The trial court[3] allowed the motion, explaining that “parties are not permitted to withhold documents based on objections, whether or not those objections are tested on a motion to compel, and then produce the same documents (or a subset thereof) when convenient to them.” Plaintiff did not seek reconsideration, but it later tried to reproduce the legal invoices; the court prohibited that attempt and barred plaintiff from relying on “deliberately withheld material.”[4] As a result, the plaintiff’s expert report on the reasonableness of attorney’s fees was stricken for being “conclusory and speculative.” Without necessary expert evidence as to the reasonableness of fees,[5] there was no reliable way to calculate damages, so the BLS granted summary judgment to the defendant. The Appeals Court affirmed. Lessons Learned For parties and litigators, the most significant lesson is not that privilege claims or well-founded discovery objections are improper. They are often necessary and fully justified. Rather, the decision illustrates the danger of advancing broad objections as part of an aggressive discovery strategy without a parallel strategy for proving the elements of a claim. Too often, litigants treat discovery disputes as isolated procedural battles. They resist production, stand on objections, and defeat individual discovery requests without stepping back to consider how those decisions will affect dispositive motions, expert opinions, or trial proof months later. Old Ironsides is a reminder that the court may eventually ask a simple question: if the documents quantifying your damages cannot be examined, how can the expert reliably support the claim? The decision also highlights a recurring tension in commercial litigation. Parties frequently attempt to use privilege as both a shield against discovery and a sword to support affirmative claims. Courts have long been skeptical of that approach. Although the Appeals Court did not announce any new waiver doctrine, the practical result was the same. The plaintiff's decision to withhold key materials severely limited its ability to present admissible damages evidence. Winning the battle of not producing a particular set of discovery documents ultimately lost the war of trying to recover $20 million. The broader takeaway for practitioners (and heads-up for parties or general counsel interacting with their litigation team) is straightforward. When objecting to discovery, especially discovery bearing directly on key case elements such as damages, counsel should always consider the downstream consequences. If billing records, internal analyses, valuation materials, or other core damages documents will ultimately be necessary to support expert opinions or trial testimony, a litigation strategy that succeeds in keeping those materials from the opposing party may simultaneously undermine the proponent’s own ability to satisfy its burden of proof. Discovery objections should be evaluated not only through the lens of immediate tactical advantage but also with respect to eventual admissibility. As Old Ironsides demonstrates, sometimes a victory in a discovery fight can contribute directly to a loss on the merits. [1] Case No. 25-P-1075, 2026 WL 2444972 (Mass. App. Ct. Aug. 20, 2026) (Rule 23.0) [2] Three years after the SEC investigation had concluded. [3] The case was before the Business Litigation Session, a specialized Massachusetts trial court that hears complex business cases. Judges in the BLS rotate, and Judge Squires-Lee ruled on this particular motion. [4] Judge Salinger issued this decision. [5] The Appeals Court noted that assessing the reasonable range of expenditures in response to an SEC investigation is well beyond the common experience of a lay juror, and even of many attorneys.  Without expert testimony, no damages figure could reasonably stand.

On April 16, 2025, the Massachusetts Supreme Judicial Court (the “SJC”) issued a decision concluding that a claim based on a negotiated contract providing for indemnification of damages caused by an architect’s negligence cannot be time barred under the statute of repose. The decision may noticeably impact negotiation and litigation of construction agreements going forward; parties in the construction industry need to pay careful attention to such provisions in their contracts. In the case, Trustees of Boston University v. Clough, Harbour & Associates LLP[1], the defendant architect agreed to design a new athletic field for Boston University. As part of the agreement, the sophisticated parties negotiated an express indemnification provision pursuant to which the architect promised to indemnify the university for “any and all” expenses incurred by the university as a result of the architect’s “negligen[t]” design. The SJC noted that this provision is not part of the American Institute of Architects (AIA) Standard Form of Agreement Between Owner and Architect, AIA Document B101-2007 used by the parties. When the university began to experience problems with the field after it first opened in 2013, it demanded, pursuant to the indemnification provision, that the architect indemnify it for the expenses. More than six years after the field opened, the university sued. The architect moved for summary judgment, relying on the statute of repose, and the Superior Court allowed the motion. Boston University appealed, and the SJC, recognizing the importance of the issue, took the case on direct appellate review, bypassing the Appeals Court. The SJC noted that the statute of repose[2] provides an automatic, nearly inviolable bar to actions of tort for damages arising out of “any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property” if brought more than six (6) years after the earlier of (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of the possession for occupancy by the owner. The statute of repose does not, however, apply to contract actions; it is a limitation expressly applicable to actions of tort. The SJC therefore analyzed whether the action, although styled a contract claim, was really one of tort. In its analysis, the court noted that it would look beyond labels to examine the “gist of the action” to determine whether the tort statute of repose bars the claim.  The court wrote that determining where the gist of a claim falls depends largely on where the standard of performance is derived from. In contracts, the standard of performance is set by the defendant’s promises, whereas in tort, it is set by law. For example, the court observed that it has previously determined that the tort statute of repose applies to a claim for breach of an implied warranty, since the duty is imposed by law, and that the elements for breach of implied warranty and for negligence claims are the same. In contrast, it cited Gomes v. Pan Am. Associates[3] as an example of a contractual indemnification clause upheld in spite of a negligence claim brought more than six years after the property opened for use, where the parties freely and intelligently entered into a comprehensive contract of indemnification. Because in the Boston University case, the architect’s duty to indemnify the university was not one imposed by law, but rather, a promise to which the architect freely and intelligently chose to be bound, the SJC held that the gist of the action sounded in contract.[4] As a contract claim, the statute of repose could not apply, and the prior grant of summary judgment was reversed and remanded for further proceedings. Importance of the Decision As specifically noted in the SJC’s decision, the type of indemnification provision at issue, which included an indemnity for negligence, is not found in the standard AIA form most often used in construction contracting. That may change moving forward, but unless and until it does, the weight of negotiating such a clause into that type of contract has taken on additional importance. The statute of repose has long been a powerful shield for those in the construction industry to fend off lawsuits arising many years after completion of a project. There are very few ways to sue around a construction claim that arises more than six years after the project is complete. This decision now adds a meaningful sword to the arsenal of property owners for use in combating those protections. Relevant here, while the statute of repose is a strict six year limitation from completion of the project, the six year breach of contract limitation period only begins to run from the time of breach; in this case, that occurred when the architect refused to indemnify the university. Having that statute of limitations tolled pending a breach gives significant life to contract claims arising long after the project is completed. Parties on both sides of such construction contracts will need to consider how to approach negotiating indemnification provision moving forward. If they are not careful, construction professionals could find themselves liable for damages occurring decades after a construction project is completed. The Legislature’s response to the decision will be another intriguing area to watch. Caselaw is full of decisions noting the legislative intent in providing certainty and ironclad protections for construction professionals after six years, when they might otherwise forever be on the hook for latent defects in their work. Whether the Legislature takes action in response to this ruling remains to be seen; it may find that the SJC continued to honor its intent by only providing a carve out for those sophisticated parties willing to enter into a heavily negotiated indemnification provision, or it may feel that the loophole goes too far in adding pressure on construction professionals who may be forced to agree to provisions they would otherwise choose to reject. The Legislature’s response will be closely watched by the field. *** Sullivan’s Real Estate and Litigation teams are paying careful attention to these developments and stand ready to assist with the negotiation and litigation of such contracts and disputes. Please feel free to contact our attorneys with any questions on this significant development in construction law.    [1] 495 Mass. 682 (2025). [2] G.L. c. 260, § 2B, first par. [3] 406 Mass. 647, 648 (1990). [4] It further noted that, while not dispositive, because the complaint alleged breach of contract, the elements that the university would have to prove at trial differed from those in negligence, and supported the reading that the claim truly did sound in contract.