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

Filing 236

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(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
WOLF, D.J.

September 27, 2013

There have been several motions filed since the September 13,
2013 hearing and three September 17,

2013 Orders issued in this

case. The court is now deciding them as follows.
1. As agreed by plaintiff Rissman, Hendricks & Oliverio, LLP
("Rissman")

and

defendant

Alan

Lindsay

(See

Docket

No.

223),

Rissman is, pursuant to Federal Rule of Civil procedure 37 (a)

(5),

entitled to an award of $9,689.17, against Lindsay, as reasonable
attorney's fees

and costs relating to Rissman's two meritorious

motions to compel.

It is,

therefore,

hereby ORDERED that Lindsay

shall pay Rissman $9,689.17 by October 10, 2013.
2. On August 6,

2013,

the court ordered that the hearing on

Rissman's Motion to Hold Lindsay in Civil Contempt, which began on
May 8,

2013, would continue on August 14,

2013. See Aug.

6,

2013

Order. In the same Order, the court directed Thomas Deutsch, Esq.
to appear and be prepared to testify concerning the two pending
motions to compel him to produce documents. Id. On August 9, 2013,
despite Rissman's objection, the court allowed Deutsch's Emergency
Motion to Continue the August 14, 2013 hearing and rescheduled it
for September 10, 11, 12 and 13, 2013. See August 9,
Deutsch

was

September

again

3,

2013,

ordered
the

to

appear

court,

with

at

the

Rissman's

2013 Order.

hearing.
assent,

Id.

On

allowed

Lindsay's Motion to Continue the September 10, 2013 hearing as to
motions that required testimony,

including the motions to compel

Deutsch to produce documents. See September 3, 2013 Order. At the
September

13,

2013

hearing,

the

court

orally

ordered that

the

previously scheduled evidentiary hearings would resume on October
15, 2013,

and continue from day to day until concluded. See also

September 17, 2013 Memorandum and Order Concerning Subpoena at 2-3.
The court intended that, as previously ordered, Deutsch appear to
testify and,

if ordered,

produce documents at

that hearing.

To

eliminate any arguable ambiguity, it is hereby ORDERED that Deutsch
appear at the hearing which will begin on October 15,

2013,

be

prepared to testify on issues relating to the pending motions to
compel

the

production

of

documents,

and

bring

with

him

all

documents implicated to by the original motions to compel (Docket
Nos.

149,

159),

August 8, 2013

and a third motion to compel which was filed on
(Docket No. 168).

2

Deutsch claims in a memorandum that "pre-existing commitments
preclude

[him]

from attending"

the hearing which will begin on

October 15, 2013. See Non-Party Thomas J. Deutsch's Opposition to
Plaintiff's Motion for an Order Compelling Defendants to Either
Claim or Waive an Attorney-Client Privilege with Thomas Deutsch
and/or McMillan at 6 (Docket No.

222).

It is,

however,

important

that this case progress. Deutsch has not shown good cause why his
preferred scheduled should again disrupt these proceedings. He is,
therefore, put on notice that if he fails to appear as ordered on
October

15,

2013,

with

the

required documents,

the

court

will

initiate criminal contempt proceedings against him, and also issue
a warrant to have him seized and brought before the court.
3. On September 18, 2013, Rissman filed a motion (Docket No.
219)
II

for

an

order

compelling

Defaul ted Defendants

1 ll

Deutsch

to

provide

each

of

the

notice and an opportunity to inform the

court of whether they believe that the confidential communications
that they had with Deutsch,
opposes this motion,

if any,

remain privileged.

arguing that it is unnecessary and,

Deutsch
in any

event such an order would be ineffective because he does not have
the means to communicate with the Defaulted Defendants.

(See Docket

Nos. 222, 224).

I As defined in the September 17,
2013 Order Concerning
Contempt the "Defaulted Defendants" are MIV Therapeutics, Inc.,
MIV Scientific Holdings, Ltd., Biosync Scientific PVT, and Chris
Xunan Chen. See September 17, 2013 Memorandum and Order
Concerning Contempt at 2.

3

Rissman's motion

(Docket No.

219)

is hereby DENIED,

in part

because the court understands from Deutsch's submissions that he
does not intend to assert any attorney-client privilege with regard
to the Defaulted Defendants.
4.

On September

23,

2013,

Rissman

filed

a

motion

to

hold

Deutsch in contempt (Docket No. 232), which the court construes as
a request for a finding of civil contempt. Pursuant to Rule 7.1 (B)
(2) of the Local Rules of the United States District Court for the
District

of

October 8,

Massachusetts,

2013,

Deutsch

has

14

to respond to this motion.

days,

meaning

until

It is hereby ORDERED

that Deutsch do so by October 8, 2013. The court will then decide
whether to address this motion at the hearings that will begin on
October 15, 2013, or, if necessary, at a later date, because it is
possible that the pending contempt proceedings concerning Lindsay
and the Defaulted Defendants will moot the issue of whether Deutsch
should be found to be in civil contempt.

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UNITED S~TES DISTRICT JUDGE

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