Maverick Therapeutics, Inc.
Harpoon Therapeutics, Inc.,
Submitted: August 2, 2019
C. Barillare, Esquire Morgan Lewis & Brockius LLP
P. DiTomo, Esquire Elizabeth A. Mullin, Esquire Aubrey J.
Morin, Esquire Morris, Nichols, Arsht & Tunnell LLP
Gregory P. Williams, Esquire Steven J. Fineman, Esquire
Nicole K. Pedi, Esquire Angela Lam, Esquire Richards Layton
& Finger, P.A.
Letter Opinion relates to a discovery dispute between the
parties concerning attorney-client privilege. The maintenance
of that privilege is fundamental to our adversarial system of
law. Without the privilege, candid communication between
client and counsel for purposes of representation would be
impossible. The privilege, however, comes at a price. It
impedes the search for truth that is the entire basis for the
forensic system of justice in which attorneys operate.
Therefore, it is fair to say that the privilege must be
rigorously upheld, but only in the concise sphere within
which it is indispensable.
Plaintiff Maverick Therapeutics, Inc. ("Maverick")
and Intervenor-Plaintiff Millennium Pharmaceutical, Inc.
("Millennium") seek production of certain material
and communications with Dr. Greg Sieczkiewicz. Dr.
Sieczkiewicz is Chief IP Counsel for MPM Capital, Inc.
("MPM"), a private equity firm that has invested in
Defendant Harpoon Therapeutics, Inc.
("Harpoon"). Dr. Sieczkiewicz is apparently also a
lawyer. Harpoon has withheld the requested discovery on the
basis of attorney-client privilege.
July 26, 2019 teleconference regarding discovery disputes, I
directed Harpoon to provide further evidence of its
attorney-client relationship with Dr. Sieczkiewicz, which
Harpoon had asserted generally. In response, on July 30,
2019, Harpoon filed a supplemental submission, accompanied by
two affidavits, from Lilia R. Lopez, a California attorney
admitted to Delaware pro hac vice, who represents
Harpoon in this action, and from Dr. Gerald McMahon,
Harpoon's President and CEO. The supplemental submission
was also accompanied by an unsworn statement from Dr. Patrick
Baeuerle, an Executive Partner at MPM.
and Harpoon each submit that California law governs whether
an attorney-client relationship exists here. Under California
law, "an attorney-client relationship is not created by
the unilateral declaration of one party to the
relationship." A relationship may only be created by
express or implied contract.In considering whether an implied
contract exists, a court must look to the totality of the
circumstances to determine whether an attorney-client
relationship was, in fact, created. No express contract of
representation between Harpoon and
exists. Accordingly, the material relating to Dr.
Sieczkiewicz must be produced unless Harpoon, as the party
asserting privilege, can satisfy its burden of proof that it
reasonably believed Dr. Sieczkiewicz to be its attorney,
pursuant to an implied contract of representation. I
permitted the Harpoon to submit additional evidence showing
that it has an attorney-client relationship with Dr.
Sieczkiewicz, who works for another entity. The information
provided, to my mind, does not establish an attorney-client
Dr. Sieczkiewicz commented on Harpoon's patent
applications, but nothing demonstrates to me that his
comments were legal in nature. It is telling that none of the
affidavits provide statements of individuals associated with
Harpoon averring that they believed Dr. Sieczkiewicz to be
Harpoon's lawyer. Dr. McMahon's affidavit is
tautological; it contains the following language: "It
was and remains my understanding that the communications with
Dr. Sieczkiewicz . . . were attorney-client
privileged." Similarly, Dr. Baeuerle states that he
"consider[s] all of those communications [with Dr.
Sieczkiewicz] . . . to be Harpoon attorney-client
privileged." Under California law, such a unilateral
declaration is insufficient to establish
also points out that Dr. Sieczkiewicz titled one e-mail chain
"Harpoon privileged communication," and argues that
this demonstrates that an attorney-client relationship was
created. I note that merely labeling a communication as
"privileged" does not make it so. Further, nothing
about Dr. Sieczkiewicz's privilege label indicates that
he believed the e-mail communication to be privileged on
attorney-client grounds, as opposed to some other ground-for
instance, because it contained trade secret information to
which Dr. Sieczkiewicz and other employees of MPM, who were
copied on the e-mail exchange, were privy. Harpoon has failed
to produce evidence of an attorney-client relationship
sufficient to meet its burden of proving such a relationship
existed. Therefore, the documents Maverick and Millennium
seek are discoverable.
extent the foregoing requires an order to take ...