                            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




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