Mirra, et al. v. Mirra, et al. (Lawyers Weekly No. 12-044-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1484CV03857-BLS2 ____________________ LEONARD MIRRA and SANDRA CAPO, individually and derivatively on behalf of MIRRA CO., INC. v. NORINO MIRRA; MIRRA CO., INC.; CHRISTOPHER MIRRA; NATALIE WRIGHT; and ANTHONY MIRRA, JR. ____________________ MEMORANDUM AND ORDER ALLOWING MOTION BY NORINO MIRRA AND MIRRA CO. TO COMPEL PRODUCTION OF DOCUMENTS This lawsuit concerns a dispute among shareholders in a closely-held corporation known as Mirra Co., Inc. Plaintiffs Leonard Mirra (known as Lenny) and his sister Sandra Capo are minority shareholders. Their brother Anthony Mirra, Jr., is also a minority shareholder; he is named as a defendant only because he is a necessary party with respect to Plaintiffs’ claim challenging purported transfers of stock from Norino Mirra to his children Christopher Mirra and Natalie Wright. Defendants Norino Mirra and Mirra Co. have moved to compel production of 44 emails among Lenny, Sandra, their lawyer at Posternak Blankstein & Lund, and Anthony. Defendants argue that these emails are not privileged because they were shared with Anthony, who is not represented by Posternak. Plaintiffs argue that the emails are privileged because Anthony had and still has an implied attorney-client relationship with Posternak. The Court will ALLOW the motion to compel because it concludes, based on Anthony’s sworn deposition testimony, that Anthony never had any kind of attorney-client relationship with Posternak. Absent such a relationship, any privilege in the disputed emails was waived when Plaintiffs voluntarily shared them with Anthony. In re Adoption of Sherry, 435 Mass. 331, 336 (2001). As the party asserting the attorney-client privilege, Plaintiffs have “the burden of establishing that the privilege applies to the communications at issue.” Clair v. Clair, 464 Mass. 205, 215 (2013). “Generally, the attorney-client privilege protects only ‘confidential communications between a client and its attorney undertaken for the purpose of obtaining legal advice.’ ” DaRosa v. City of New Bedford, 471 Mass. – 2 – 446, 463 (2015), quoting Suffolk Constr. Co. v. Division of Capital Asset Mgmt., 449 Mass. 444, 448 (2007). It is undisputed that Anthony never had any express attorney-client relationship with Posternak. In 2010 Lenny, Sandra, and Anthony all met with Attorney Nicholas Nesgos of Posternak to discuss ongoing disputes with the majority shareholders in Mirra Co. (Defendants do not seek disclosure of anything said at that meeting.) Thereafter Lenny and Sandra hired Posternak to represent them. Anthony did not. He never signed an engagement letter with Posternak, never paid Posternak any money, never asked Posternak to represent him, and was never told that Posternak or Attorney Negros was representing him. Plaintiffs insist that Anthony nonetheless had an implied attorney-client relationship with Posternak. In an interesting twist, Anthony does not join in that argument and does not […]