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Chemeon Surface Technology, LLC v. Metalast International, Inc.

United States District Court, D. Nevada

April 21, 2017

CHEMEON SURFACE TECHNOLOGY, LLC, Plaintiff,
v.
METALAST INTERNATIONAL, INC., et al., Defendants. AND RELATED CLAIMS.

          ORDER

         On September 15, 2016, the Court entered an Order (ECF No. 177) finding a waiver of the attorney-client privilege because records of Metalast International, LLC and Metalast International, Inc., had been commingled. The Court found:

that defendants' voluntary disclosure of the attorney-client communications constitutes a waiver of the privilege “as to all other such communications on the same subject.” Weil, 647 F.2d at 24. By “the same subject, ” the court finds this includes the provision of legal services related to the development, acquisition, registration, ownership, protection, licensing, and assignment of intellectual property rights for the LLC and the Inc. As to the thirty-four documents submitted to the court in camera, the court finds these documents relate to the universe of documents included in the subject matter waiver; therefore, they are not entitled to any privilege protections.

(Id. at 5.)

         On February 28, 2017, the Court entered an Order (ECF No. 221) that David Semas and other deposition witnesses answer questions, without objection, that fell within “the same subject” defined in the September 15, 2016 order. (ECF No. 177.) This Order clarified that the scope of the subject matter waiver defined in the September 15, 2016 order was “without regard to whether attorney-client communications occurred during the pendency of David Semas's bankruptcy proceedings.” (ECF No. 221 at 2.) The Court further stated, “Defendants' failure or refusal to comply with this order or its September 15, 2016 order shall subject defendants and their counsel to sanctions pursuant to Fed.R.Civ.P. 37.” (Id.)

         On April 11, 2017, the Court conducted a Motion and Show Cause Hearing (ECF No. 268). At this hearing, the Court ordered that “all attorneys listed in Exhibit 25 of the Declaration of Michael D. Hoy in opposition to the motion for sanctions, etc., (ECF No. 252) and Ian Burns, Esq., shall provide a certification that they have produced all documents and attorney invoices in their possession, even if counsel contend they are protected by attorney-client privilege or work product doctrine. (Id.)

         Accordingly, it is ordered:

         1. Michael D. Hoy, by signing below, hereby certifies that the attorneys listed below (the “Certifying Attorneys”) are the only attorneys in possession, custody, or control of documents falling within the scope of the subject matter waiver. The following Certifying Attorneys shall each execute and deliver to Mr. Hoy for filing with the Court, a certification, in the forms attached as Exhibit A:

• Ian Burns, Esq., ATIP Law, 4790 Caughlin Parkway, #701, Reno, Nevada 89519, email: iburns@atiplaw.com;
• Stephen R. Harris, Esq., 6151 Lakeside Drive, Suite 2100, Reno, Nevada 89511, email: steve@harrislawreno.com;
• Lara Pearson, Esq., PMB 405, 75 Mays Bouleard, No. 10, Incline Village, Nevada 89541, fax: (866) 364-6187;
• Garrett Sutton, Esq., Sutton Law Center, 348 Mill Street, Reno, Nevada 89501, email: gsutton@sutlaw.com; and
• Michael Hoy, Joy Chrissinger Kimmel Vallas, PC, 50 West Liberty Street, Suite 840, Reno, Nevada 89501, email: mhoy@nevadalaw.com

         2. Any attorney who submits a certification that identifies documents or electronically-stored information (“ESI”) falling within the scope of the subject matter waiver as defined in the Court's Order (ECF Nos. 177, 221), from April 1, 2013 to June 3, 2015, shall also produce those documents and ESI directly to Plaintiff's counsel (Tamara Reid, Esq., Holland & Hart, LLP, 5441 Kietzke Lane, 2nd Floor, Reno, Nevada 89511; treid@hollandhart.com) by no later than April 27, 2017. In the event a Certifying Attorney has no documents and things in their possession that are within the scope of the subject matter, the Certifying Attorney shall execute the No Documents Located Certification;

         3. Defendants' counsel shall provide a copy of this Order, the Certifications, and the Court's prior Orders and Minutes of Proceedings related to the subject matter ...


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