Superior Court of Massachusetts, Suffolk, Business Litigation Session
Leonard Mirra et al., Individually and Derivatively on Behalf of Mirra Co., Inc.
Norino Mirra et al No. 136811
April 26, 2017
MEMORANDUM AND ORDER ALLOWING MOTION BY NORINO MIRRA
AND MIRRA CO. TO COMPEL PRODUCTION OF DOCUMENTS
Kenneth W. Salinger, Justice of the Superior Court.
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
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
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, 757 N.E.2d 1097 (2001).
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, 982 N.E.2d 32 (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. 446, 463, 30 N.E.3d 790 (2015), quoting Suffolk
Constr. Co. v. Division of Capital Asset Mgmt., 449
Mass. 444, 448, 870 N.E.2d 33 (2007).
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.
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 oppose the motion to compel production emails he
received or sent.
An attorney-client relationship may be implied 'when (1)
a person seeks advice or assistance from an attorney, (2) the
advice or assistance sought pertains to matters within the
attorney's professional competence, and (3) the attorney
expressly or impliedly agrees to give or actually gives the
desired advice or assistance.'" DaRoza v.
Arter, 416 Mass. 377, 381, 622 N.E.2d 604 (1993),
quoting DeVaux v. American Home Assurance Co., 387
Mass. 814, 817-18, 444 N.E.2d 355 (1983). " All three
requirements of this test must be met to establish the
claim that Anthony had an implied attorney-client
relationship with Posternak fails to meet the first
requirement, because Plaintiffs have not convincingly
demonstrated that Anthony ever sought advice or assistance
from Attorney Nesgos. The Court credits Anthony's sworn
deposition testimony that he never asked Nesgos to provide
him with any legal advice. It follows that " [n]o
implied attorney-client relationship came into
existence." DaRoza, supra, at 382. Even if
Anthony somehow relied upon Posternak to protect his
interests, that would not establish an implied
attorney-client relationship in the absence of credible
evidence that Anthony actively sought Posternak's advice
or assistance. See Fanaras Enterprises, Inc. v.
Doane, 423 Mass. 121, 125, 666 N.E.2d 1003 (1996).
have muddied the waters by submitting an affidavit in which
Anthony says, contrary to his deposition testimony, that
" I went to the meetings with Attorney Nesgos because my
brother and sister asked me to go and because I wanted to
receive legal advice from Attorney Nesgos about our rights as
Court were considering a motion for summary judgment, it
would have to disregard Anthony's affidavit to the extent
that it contradicts his prior, sworn deposition testimony.
See York v. Zurich Scudder Investments, Inc., 66
Mass.App.Ct. 610, 611, 849 N.E.2d 892 (2006) (" a party
cannot create a disputed issue of fact by the expedient of
contradicting by affidavit statements previously made under
oath at a deposition" (quoting O'Brien v. Analog
Devices, Inc., 34 Mass.App.Ct. 905, 906, 606 N.E.2d 937
context, the Court must decide whether it believes the
testimony Anthony gave at his deposition in October 2016 or
the materially different statement Anthony endorsed by
signing his affidavit in March 2017.
Court is not required to believe everything Anthony says in
his affidavit. In deciding a motion supported by sworn
affidavits, " the weight and credibility to be accorded
those affidavits are within the judge's discretion"
and " [t]he judge need not believe such affidavits even
if they are undisputed." Commonwealth v. Furr,
454 Mass. 101, 106, 907 N.E.2d 664 (2009). An affidavit
" is a form of sworn testimony the credibility of which
is to be determined by the judge." Psy-Ed ...