SHENANIGANS SALES, INC., Plaintiff, v. EARTH TONES TRADING CO, ET AL., Defendant CIVIL NO. 06-3430 (RHK/JSM) United States District Court, D. Minnesota Filed June 06, 2007 Counsel D. Clay Taylor, D. Clay Taylor, P.A., Mpls, MN, for Plaintiff. Christopher R. Morris, Alan I. Silver, Bassford Remele, PA, Mpls, MN, Kenneth R. Donchatz, Christensen Christensen Donchatz Kettlewell & Owens LLP, Columbus, OH, for Defendant Mayerson, Janie S., United States Magistrate Judge ORDER *1 Currently under advisement are plaintiff’s Motions for Sanctions [Docket No. 19] in the above matter, and defendants’ Motion to Quash Subpoena [Docket No. 41] directed to defendants’ former attorney. D. Clay Taylor, Esq. appeared on behalf of plaintiff; Kenneth Donchatz, Esq., Alan Silver, Esq. and Paul Gondola appeared on behalf of defendants. The Court, upon all of the files, records, and proceedings herein, and for now makes and enters the following Order. IT IS HEREBY ORDERED: 1. Defendants’ Motion to Quash Subpoena [Docket No. 41] is DENIED. 2. An evidentiary hearing will take place in connection with plaintiff’s Motion for Sanctions. 3. Defendants’ former attorney, George Sedar, shall appear at an evidentiary hearing before this Court to provide testimony on the following topics bearing on plaintiff’s Motion for Sanctions: a. Communications (oral, written, voicemails or electronic) between defendants’ former counsel (Sedar or Joel Mirmar) and defendant Larry Levine regarding the deadlines for responses to the discovery that was the subject of plaintiff’s Motion to Compel Discovery and to Deem Requests for Admissions to be Admitted [Docket No. 9] (hereafter referenced as “Motion to Compel”). b. Provision of draft written responses by Levine to defendants’ former counsel (Sedar or Mirmar) regarding to the discovery that was the subject of the Motion to Compel and the dates such draft written responses were sent to former counsel. c. Communications (oral, written, voicemails or electronic) between defendants’ former counsel (Sedar or Mirmar) and Levine regarding notification of the Motion to Compel, the date of the hearing of the Motion to Compel, the information and relief being sought in the Motion to Compel, and the deadline for responding to the Motion to Compel. d. The dates defendants’ former counsel (Sedar and Mirmar) notified Levine of the outcome of the hearing on February 1, 2007, the contents of the Order [Docket No. 17] issued by this Court on the Motion to Compel, and the method of notification (oral, written, voicemails or electronic). e. Communications (oral, written, voicemails or electronic) between defendants’ former counsel (Sedar or Mirmar) and Levine regarding the contents of the Order [Docket No. 17] issued by this Court on the Motion to Compel. f. Communications (oral, written, voicemails or electronic) between defendants’ former counsel (Sedar or Mirmar) and Levine after February 8, 2007, regarding compliance with the Order [Docket No. 17] issued by this Court on the Motion to Compel. g. Paragraphs 1-6 of the Affidavit of Lawrence Levine in Support of Response to Second Motion for Sanctions [Docket No. 36] (“Levine Affidavit”). 4. Joel Mirmar may appear at the evidentiary hearing in person, telephonically or by video teleconference and provide testimony regarding the topics listed in Paragraph 3 above. Alternatively, his testimony can be presented to the Court from a deposition. 5. Defendant Levine may appear at the evidentiary hearing in person and provide testimony regarding the topics listed in Paragraph 3 above. *2 6. At least 7 days prior to the evidentiary hearing, defendants shall deliver to plaintiff any documents, electronic communications, and voicemails (hereafter collectively referenced as “materials”) evidencing any of the information described in Paragraph 3 above and in Paragraphs 1-6 of the Levine Affidavit. To the extent that any of these materials contain information not bearing on the topics described in Paragraph 3 above and in Paragraphs 1-6 of the Levine Affidavit, defendants may redact that information prior to producing the materials to plaintiff. 7. At least 14 days prior to the evidentiary hearing, and upon subpoena by plaintiff’s attorneys, Sedar and Mirmar shall deliver to counsel for defendants any materials described in Paragraph 6 above. At least 7 days prior to the evidentiary hearing, defendants shall deliver to plaintiff these materials. To the extent that any of these materials contain information not bearing on the topics described in Paragraph 3 above or Paragraphs 1-6 of the Levine Affidavit, counsel for defendants may redact that information prior to producing the materials to plaintiff. 8. A copy of this Order shall be provided to attorneys Sedar and Mirmar in connection with any subpoena served upon them. 9. Defendants shall bring to the evidentiary hearing all materials produced to plaintiff without redaction. 10. Plaintiff’s Motion for Sanctions [Docket No. 19] is under advisement. Memorandum On February 1, 2007, this Court heard plaintiff’s Motion to Compel defendants to produce outstanding discovery. At the hearing, this Court granted the motion and ordered defendants on or before February 8, 2007, to respond to outstanding discovery and pay plaintiff $750 for the attorney’s and costs it had incurred in bringing its Motion to Compel. On February 5, 2007, the Court issued its written Order confirming its ruling from the bench. Plaintiff subsequently moved this Court for sanctions for defendants’ alleged failure to comply with this Court’s Order. In response to this motion for sanctions, defendant Levine responded in part by blaming his former attorneys, George Sedar and Joel Mirmar, for the failure of defendants to respond to the discovery that was the subject of plaintiff’s motion to compel, and asserting that he had no notice of this Court’s Order until mid-February 2007, when current counsel informed him of the ruling. See Levine Affidavit, ¶¶ 1-6; Defendant’s Response to Plaintiff’s Second Motion for Sanctions, pp. 1-2, 5. In light of defendants’ response, plaintiff served a subpoena on attorney Sedar to appear at the sanctions hearing and give testimony bearing on Levine’s response to the sanctions motion. Defendants moved to quash the subpoena on grounds that they had not waived their attorney-client privilege with respect to any communications between Levine and their former attorneys, Sedar and Mirmar. In light of defendants’ position, this Court took the sanctions motion, plaintiff’s request for an evidentiary hearing, and defendants’ motion to quash the subpoena under advisement. In addition, this Court requested the parties brief the issue of whether there had been a waiver of the attorney-client privilege with respect to any communications between Levine and his former attorneys Sedar and Mirmar. Having reviewed the submissions of the parties, this Court has concluded that defendants have waived their right to assert the attorney-client privilege with respect to communications between Levine and Sedar and Mirmar regarding the discovery that was the subject of the February Order and the relief granted in this Order, and that therefore, defendants’ motion to quash the subpoena of attorney Sedar should be denied. In addition, the Court determined that it was necessary to hold an evidentiary hearing on the communications that took place between Levine and his former counsel before the sanctions motion could be decided. The Court then conferred with counsel for the parties on the scope of the waiver, the topics which would be covered with witnesses at the evidentiary hearing, and what materials, if any, should be produced in advance of the hearing. The Court and counsel were basically in agreement on the scope of the topics to be covered by witnesses at the hearing, and how to handle materials bearing on those topics. This Order reflects these limitations.