Tuesday, December 6, 2016

[U] Dramatic Tete-A-Tete: Mr. Shkreli's Lawyers Re-Emerge, By Letter, Overnight -- In Reply

[Subsequent "End of Day" update, here.] UPDATED @ 3 PM EST 12.06.2016: The very capable Judge Kiyo A. Matsumoto has ruled as follows -- in Brooklyn's federal District Court, this morning:

". . .ORDER as to Martin Shkreli letter dated 12/5/16 [126] and Retrophin letter dated 12/5/16 [124]. ORDER as to [124] and [126]. The court appreciates the ongoing efforts of counsel to resolve the attorney-client privilege issues raised by Retrophin and expects that good faith negotiations will continue. The court's November 30, 2016 order is modified as follows:

(1) Katten Muchin's date for producing communications involving Mr. Shkreli between 2013 to 2014 is extended from December 6, 2016 to December 9, 2016, so that Retrophin can make necessary disclosures consistent with its contractual obligations and continue its talks with Mr. Shkreli to address its other concerns.

(2) Mr. Shkreli and Retrophin shall continue good faith discussions regarding the disclosure of documents relating to specific commercial products. Retrophin and Mr. Shkreli shall submit a joint status letter by December 10, 2016 to advise the court on the outcome of their discussions regarding communications relating to specific commercial products and remaining issues warranting the court's attention.

IT IS FURTHER ORDERED that, pursuant to Rule 502(d) of the Federal Rules of Evidence, Katten Muchin Rosenman LLPs production of its communications with Martin Shkreli to Mr. Shkreli in accordance with paragraph 3(a) of the November 30 Order [120] shall not constitute a waiver, in this or any other proceeding, of any attorney-client privilege that nonparty Retrophin, Inc. may have in such materials. As previously ordered, the court will not rule on further disclosures or on the admissibility of documents until Retrophin, MSMB and Biestek have identified and provided privilege logs regarding documents over which privileges are asserted.

Counsel for Mr. Shkreli shall serve a copy of this order on counsel for Katten Muchin, Retrophin, Mr. Biestek and the MSMB Entities by close of business on December 6, 2016 and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 12/6/2016
. . . ." [End, updated portion.]

As real life courtroom dramas go, this one has already surpassed all the over-hyped expectations -- and that hype was considerable, given that the protagonist is such an unabashedly ill-behaving odd-ball. But surpasss -- it has. Let's recap: last week we learned of one hour deadlines, half a globe away, for response to court filings.

So, that idea -- that US lawyers would find themselves "trapped in Europe" -- and thus hampered in meeting impending court filing deadlines, all while on globe-spanning flights. . . would seem plenty of good plot mill-grist.

But wait, there's more! Tonight, we learn of this bit of additional drama: it seems that spousal medical emergencies at least in part fed into the "missed signals" -- on whether Mr. Biestek was waiving client privilege (as to the MSMB materials at Katten). The Shkreli lawyer present for all the original calls was apparently drawn away by his wife's medical emergency -- for the past several days -- and thus is just now rejoining the discussions. High drama, indeed.

The upshot though -- is this latest five page letter -- filed late this evening, in Brooklyn.

I still think the able judge is likely to grant some of the argued-for (albeit belatedly-asserted) privilege to Mr. Biestek -- but we shall wait and see.

I am still puzzled that Mr. Shkreli thinks that just because he claims he "owns" a document -- he may avoid turning it over to the government, if it be unprivileged, and already covered by a subpoena. And I think it dubious that he could personally own any MSMB fund documents. He was not the fund. The fund was not. . . he. Heh.

So, that seems a stretch. But as I say, we shall see.

Now you know -- do go read it all. Fascinating.

And again -- this has been one of those nights where I've waited, mostly in vain, for sleep to find me. Even so, onward with a smile, this cold gray morning. . . .


No comments: