RNAi Litigation

Archive for September 26th, 2010

[from Case 1:09-cv-11116-PBS Document 456 Filed 09/24/10; ‘Memo to Support Max Planck’s Motion to Compel Production of Communications Involving Wolf Greenfield Under the Joint Client Rule’]

I. Introduction

Plaintiffs Max-Planck and Alnylam respectfully move this Court for an order compelling the production of all communications involving Wolf, Greenfield & Sacks, PC (“Wolf Greenfield”) relating to the prosecution of the Tuschl I patent applications during the period when Max Planck was a joint client of Wolf Greenfield. Wolf Greenfield, as well as Whitehead and UMass together with MIT are currently withholding over a thousand such communications on a claim of privilege. This claim of privilege cannot stand in light of the Court’s recent ruling in the related Wolf Greenfield case that Wolf Greenfield and Max Planck had an attorney-client relationship and that Max Planck and Whitehead were Wolf Greenfield’s “joint clients” with respect to the Tuschl I applications.

It is well settled that when an attorney represents joint clients, one client’s communications with the attorney about the subject of that representation are not privileged as between the other clients. (“The attorney-client privilege does not apply to . . . a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any one of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients”).

The “joint client” rule applies with full force here. In light of the Court’s September 14, 2010 Memorandum and Order finding that Max Planck and Whitehead were Wolf Greenfield’s joint clients, Defendants have no basis for continuing to withhold their communications with Wolf Greenfield. Further, Max Planck has brought this Motion promptly following the Court’s ruling. Accordingly, Max Planck is entitled to, and respectfully requests an order compelling the production of, the communications involving Wolf Greenfield relating to the Tuschl I applications, including all documents reflected in the entries from Defendants’ privilege logs identified in Exhibit 1 to the accompanying declaration of Alan J. Heinrich. Such an order is necessary to ensure that this case is tried on a complete record. Read the rest of this entry »