Maverick Therapeutics, Inc. v. Harpoon Therapeutics, Inc. ( 2019 )

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: August 2, 2019
Date Decided: August 9, 2019
Jody C. Barillare, Esquire Gregory P. Williams, Esquire
Morgan Lewis & Brockius LLP Steven J. Fineman, Esquire
Nemours Building Nicole K. Pedi, Esquire
1007 Orange Street, Suite 501 Angela Lam, Esquire
Wilmington, DE 19801 Richards Layton & Finger, P.A.
920 North King Street
John P. DiTomo, Esquire Wilmington, DE 19801
Elizabeth A. Mullin, Esquire
Aubrey J. Morin, Esquire
Morris, Nichols, Arsht & Tunnell LLP
1201 North Market Street
Wilmington, DE 19801
Re: Maverick Therapeutics, Inc. v. Harpoon Therapeutics, Inc.,
C.A. No. 2019-0002-SG
Dear Counsel:
This 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.
Here, 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”).1 Dr. Sieczkiewicz
is apparently also a lawyer. Harpoon has withheld the requested discovery on the
basis of attorney-client privilege.
In a 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.2 The supplemental submission was also accompanied by an unsworn
statement from Dr. Patrick Baeuerle, an Executive Partner at MPM.3
1
Docket Item [hereinafter, D.I.] 196, at ¶ 3.
2
D.I. 196; D.I. 198; D.I. 199.
3
D.I. 197.
2
Maverick and Harpoon each submit that California law governs whether an
attorney-client relationship exists here.4 Under California law, “an attorney-client
relationship is not created by the unilateral declaration of one party to the
relationship.”5 A relationship may only be created by express or implied contract.6
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.7 No express contract of representation between Harpoon and
Sieczkiewicz 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 relationship.
Theoretically, Dr. Sieczkiewicz commented on Harpoon’s patent
applications, but nothing demonstrates to me that his comments were legal in
nature.8 It is telling that none of the affidavits provide statements of individuals
4
D.I. 188, at 3 n.2; D.I. 196, at 4 n.3.
5
Koo v. Rubio’s Restaurants, Inc., Cal. Rptr. 2d 415, 423 (Cal. Ct. App. 2003).
6
Id.
7
See Responsible Citizens v. Superior Court, 20 Cal. Rptr. 2d 756, 766 (Cal. Ct. App. 1993).
8
While Dr. Sieczkiewicz is purportedly a lawyer, and while he may provide MPM with valuable
insight on the law, his position with MPM as Chief IP Officer is not an obviously legal role.
3
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.”9 Similarly, Dr. Baeuerle
states that he “consider[s] all of those communications [with Dr. Sieczkiewicz] . . .
to be Harpoon attorney-client privileged.”10 Under California law, such a unilateral
declaration is insufficient to establish privilege.11
Harpoon 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.
9
D.I. 199, at ¶ 6.
10
D.I. 197, at ¶ 5.
11
See, e.g., Fox v. Pollack, 181 Cal. Rptr. 532, 535 (Cal. Ct. App. 1986).
4
To the extent the foregoing requires an order to take effect, IT IS SO
ORDERED.
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
5