Rissman Hendricks & Oliverio, LLP v. MIV Therapeutics Inc et al

Filing 216

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, it is hereby ORDERED that: 1. The court shall attempt to serve this Memorandum and Order on defendants MIV Therapeutics Inc., MIV Scientific Holdings Ltd., Biosync Sc ientific PVT, and Chris Xunan Chen. 2. Riemer shall promptly send each defendant named in paragraph 1 hereinabove, the subpoena and this Memorandum and Order, and offer to discuss them with each defendant. 3. Riemer shall also promptly send to eac h such defendant the September 17, 2013 Memorandum and Order Concerning Contempt, which is being given to Riemer with this Memorandum and Order.4. By October 2, 2013, Riemer shall report on its efforts to have this Memorandum and Order, and the Me morandum and Order Concerning Contempt, delivered to each defendant named in paragraph 1 hereinabove and the results of its efforts to do so. 5. By October 3, 2013, each defendant named in paragraph 1 hereinabove shall file, and serve on the othe r parties and Riemer, an affidavit stating whether the defendant asserts that any of the defendant's confidential communications with Riemer are now privileged and, if so, whether the defendant wishes to assert any possible attorney-client privilege to prevent Riemer from producing to plaintiff the subpoenaed documents. Any defendant who does not file a timely response to this Order will be deemed to have waived any possible attorney-client privilege.(Hohler, Daniel)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

RISSMAN HENDRICKS & OLIVERIO,
LLP f.k.a. RISSMAN JOSBE
HENDRICKS & OLIVERIO, LLP
f.k.a. KUDIRKA & JOBSE, LLP,
Plaintiff,

v.
C.A. No.

11-10791-MLW

MIV THERAPEUTICS INC., MIV
SCIENTIFIC HOLDINGS, LTD,
BIOSYNC SCIENTIFIC PVT, ALAN P.
LINDSAY a.k.a ALAN LINDSAY,
PATRICK MCGOWAN, and CHRIS
XUNAN CHEN a.k.a. CHRIS CHEN,
Defendants.
MEMORANDUM AND ORDER CONCERNING SUBPOENA

WOLF, D.J.
This

September 17, 2013
case

Commonwealth

was

of

in

the

Massachusetts

Inj unction which,
transferring

filed

Suffolk

on

April

among other things ,

certain assets

was

Superior
6,

2011.

Court

of

A Preliminary

prohibits defendants

entered on April

the

13,

2011.

from
The

court is informed that all of the defendants -- MIV Therapeutics,
Inc., MIV Scientific Holdings, Ltd.,
Lindsay,

Biosync Scientific PVT, Alan

Patrick McGowan, and Chris Xunan Chen -- retained Riemer

& Braunstein LLP

("Riemer")

to represent them. Riemer removed the

case, with the Preliminary Injunction that had been issued, to this
United States District Court.
After motions for default judgment were filed concerning all
the

defendants

except

for

Lindsay and McGowan,

Riemer moved to

withdraw as counsel. The motion to withdraw was allowed on October

11, 2011.
On December 6, 2011, the court allowed the motion for default
judgment

on

all

counts

except

Counts

15

and

16,

which

seek

permanent injunctive relief, against defendants MIV Therapeutics,
Inc., MIV Scientific Holdings,
Chris Xunan Chen

Ltd.,

Biosync Scientific PVT, and

("the Defaulted Defendants").

against them were entered on December 6,

2011,

the amount of the judgment on December 22, 2011.
The

court

denied Lindsay's

motion

to

Default judgments
and amended as to
1

dismiss

for

lack of

personal jurisdiction. 2 On March 28, 2013, plaintiff moved to have
Lindsay held in civil contempt for having violated the Preliminary
Injunction.
Lindsay,

The
who

intentionally
concerning

hearing
was

case.

that

motion

represented

testified

this

on

about

Lindsay,

on

counsel,

by

his

began

May

waived

2013.

knowingly

communications

therefore,

8,

with

and

Riemer

any attorney-

client privilege with Riemer that he may have had concerning the
subject matter of this case.

See Kevlik v.

844, 850 (1st Cir. 1984); F. R. Ev. 502

Goldstein,

724 F.2d

(a).

The hearing to determine whether Lindsay should be held in
civil contempt that began on May 8, 2013, is scheduled to resume on

I The default judgments entered on December 6 and 22,
2011
mistakenly failed to state that judgment was not entered on
Counts 15 and 16. An amended judgment was entered on September
17, 2013 to correct this error.

2

Rissman voluntarily dismissed its claims against McGowan.

2

October 15, 2013. Plaintiff has issued a subpoena to Riemer for all
documents relating to this case. Such documents are relevant to the
motion

to

hold Lindsay

in

contempt

and

also

to

the

additional

contempt proceedings the court is initiating against Lindsay and
the Defaulted Defendants.

See September 17,

2013 Memorandum and

Order Concerning Contempt.
At a hearing on September 13, 2013, Riemer raised the question
of

whether

the

waiver

of

attorney-client

privilege

by

Lindsay

permits Riemer to produce the subpoenaed documents under the terms
of

the

April

22,

2013

retainer

agreement

with

all

of

the

defendants, which states in part:
[S]ince you have a common interest in the response to the
claims raised by Rissman, all communications with this
Firm and the undersigned, as well as communications among
the Clients relating to our work in representing you,
shall be considered to be privileged attorney client
communications; that privilege shall not be deemed to be
waived, even if a subsequent disagreement may arise among
any of you.
It is axiomatic that the client,

rather than the attorney,

holds the privilege and the power to waive it. See Kevlik, 724 F.2d
at

850.

As

explained earlier,

Defendants have not

two counts against

yet been resolved.

This court,

continues to have

jurisdiction concerning them.

circumstances,

is

it

most

appropriate

the

to

Defaulted
therefore,

In the existing

provide

each

of

the

Defaulted Defendants notice and an opportunity to inform the court
of

whether

the

defendant

believes

that

any

communications with Riemer remain privileged and,
3

confidential
if so, whether

the defendant wishes to assert a possible attorney-client privilege
that may exist to prevent Riemer from producing the documents that
have been subpoenaed.

If no Defaulted Defendant timely asserts an

attorney-client privilege,

the court will deem any such possible

privilege to be waived. If one or more defendants timely asserts an
attorney-client privilege,

the court will determine whether the

privilege exists.
In view of the foregoing,

it is hereby ORDERED that:

1. The court shall attempt to serve this Memorandum and Order
on defendants MIV Therapeutics Inc., MIV Scientific Holdings Ltd.,
Biosync Scientific PVT, and Chris Xunan Chen.
2.

Riemer

paragraph

1

shall

promptly

hereinabove,

the

send

subpoena

each
and

defendant
this

named

Memorandum

in
and

Order, and offer to discuss them with each defendant.
3. Riemer shall also promptly send to each such defendant the
September 17, 2013 Memorandum and Order Concerning Contempt, which
is being given to Riemer with this Memorandum and Order.
4. By October 2, 2013, Riemer shall report on its efforts to
have

this

Memorandum

and

Order,

and

the

Memorandum

and

Order

Concerning Contempt, delivered to each defendant named in paragraph
1 hereinabove and the results of its efforts to do so.
5.

By October 3,

2013,

each defendant named in paragraph 1

hereinabove shall file, and serve on the other parties and Riemer,
an affidavit stating whether the defendant asserts that any of the

4

defendant's

confidential

privileged and,

communications

with

Riemer

are

now

if so, whether the defendant wishes to assert any

possible attorney-client privilege to prevent Riemer from producing
to plaintiff the subpoenaed documents. Any defendant who does not
file a timely response to this Order will be deemed to have waived
any possible attorney-client privilege.

O-A.C& · Cl~ ...e. ~~
\)

UNITED STATES DISTRICT JUDGE

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