Commonwealth of Massachusetts

BARNSTABLE, SS. } } Superior Court Department

} C.A. No. 1672 CV 00142

Donald C. Arthur, M.D. }

Plaintiff} }

Vs. }

Michael Volpe, Defendant}

Defendant’s Motion for Order to Show Cause Why Plaintiff Should not Be
Held in Contempt of Court for Failing to Properly Disclose Exculpatory
Documents During Discovery
Defendant Michael Volpe, acting pro se, brings this motion.

Parties:
Plaintiff- Donald Caldwell Arthur
Plaintiff’s Attorney- firm of Beauregard, Burke and Franco
Defendant- Michael Volpe, acting pro

Background:
On August 23, 2017, Defendant sent to Plaintiff the first request for the production of documents
(Exhibit 1) during the discovery process.
On September 22, 2017, the Plaintiff responded by producing none of the documents. (Exhibit 2)
Of the eight listed items, Plaintiff claimed five did not exist and refused to provide another three,
two of which he was in January 2018, compelled by this court to provide.
One of the documents which the Plaintiff claimed did not exist was request no. 7, which reads,
“Please provide any and all documents submitted as part of the vetting process to the US Senate
when he was nominated to Surgeon General of the Navy.”
The Plaintiff answered “None.”
The Plaintiffs claimed that the Plaintiff in 2004 submitted no documents to the US Senate when
the Plaintiff was being nominated for the Surgeon General of the Navy.
The Plaintiff’s claim that nothing was submitted to the US Senate when their client was
nominated to be Surgeon General of the Navy is not only inaccurate, but it strains credulity.
It begs this court and the Defendant to believe that he would be nominated for the highest doctor
in the US Navy and he would not be required to provide the US Senate anything in writing.
Furthermore, without the Defendant asking third parties, he would not have known received
Plaintiff’s submission to the US Senate.
As the Defendant has since learned, not only did Plaintiff submit documents to the US Senate in
2004, but as Defendant would learn from his own investigation after receiving Plaintiff’s
response, these documents are even public information. (Exhibit 3)
Not only did the Plaintiff submit documents by the US Senate has standard forms which must be
filled out.
There is at least one lie in the forms submitted to the US Senate. On the form, Plaintiff claims
that he graduated from his PhD program in 1992 and his JD in 1994 (found on page 6 in the
“special qualification” section). This is not accurate; the Plaintiff graduated the two fourteen
months apart, 1992-1993.
“Within a 14-month period in 1992-93, Arthur obtained a PhD in health-care management from
what is now American Century University in New Mexico and a JD from LaSalle University,
according to his Navy record.” A Chicago Tribune story from 2008 which has previously been
submitted noted.

Furthermore, based on the post-graduate transcripts, which Defendant only received

following a motion to compel because Plaintiff initially refused to provide them, the
Defendant now knows that Plaintiff completed his PhD program in June 1992, started his
JD in February 1993, which was completed by August 1993. (Exhibits 4 and 5)
Because of these documents, the Defendant can now show that not only did Plaintiff mislead
the US Senate, but Defendant can paint a motive for the Plaintiff for the jury.
One document the Plaintiff willfully hid from Defendant while the other Plaintiff used every
legal means to hide.
It’s noteworthy that Plaintiff in arguing against the motion to compel, stated: ““Plaintiff does
not contend in this lawsuit that the Defendant’s defamation related in any way to allegations
regarding accreditation or lack thereof by LaSalle University. Accordingly, the request is
objected to on the grounds of irrelevance.”
It’s much easier to make that claim that transcripts are “irrelevant” when Plaintiff hides
another document where Plaintiff made substantially different statements (his 2004
submission to the US Senate) from these transcripts.
None of these documents would be available to Defendant if Plaintiff had his way.
Legal Argument:
The federal rules for disclosure are clear: “an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or respond.” (Source Cornell Law
School)
Indeed, the Massachusetts rules for civil procedure Rule 37 states the same: “an evasive or
incomplete answer is to be treated as a failure to answer.”
The Plaintiff’s willfully withheld a document properly asked for during the discovery process.
This was a calculated move meant to deceive, part of a pattern to deceive by the Plaintiff against
the Defendant throughout the discovery process, tainting that process beyond repair.
His actions should be considered a failure to disclose.
Because of the severity of the action, the penalty should be equally severe.
As such, the Defendant moves to order the Plaintiff show cause why he claimed nothing was
submitted to the US Senate in writing during Plaintiff’s nomination to the US Senate in 2004 to
be the Surgeon General of the Navy even though this document exists and Defendant followed
proper discovery procedures when requesting it.
Failing to show cause, the Defendant asks that the court find the Plaintiff in contempt of court
and, as such, have his lawsuit dismissed with prejudice.

Sincerely,

Michael Volpe