United States Court of Appeals
For the First Circuit
No. 17-1589
ERIC BLATTMAN, individually and as an assignee of
certain former members of E2.0 LLC,
Plaintiff - Appellant,
v.
THOMAS SCARAMELLINO,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
John Marcus McNichols, with whom Williams & Connolly LLP,
Christopher E. Hart, Daniel L. McFadden and Foley Hoag LLP were on
brief, for appellant.
Adam S. Cashman, with whom David S. Godkin and Birnbaum &
Godkin, LLP were on brief, for appellee.
May 17, 2018
BARRON, Circuit Judge. This appeal arises out of a civil
action brought in federal court in Delaware concerning a corporate
merger between Efficiency 2.0 LLC ("E2.0") and C3, Inc. (the
"Delaware Action"). See Eric Blattman v. Thomas Seibel, C.A. No.
15-cv-00530-GMS (D.Del). As part of the Delaware Action, Eric
Blattman ("Blattman"), attempted to depose Thomas Scaramellino
("Scaramellino"), the founder of E2.0, in Massachusetts, where
Scaramellino resides.
At the deposition, Scaramellino refused to answer
questions about certain documents by asserting attorney-client
privilege and work-product protection.1 Thereafter, on May 10,
2017, Blattman filed a motion in the District of Massachusetts to
compel Scaramellino to respond to questions regarding those
documents. The District Court rejected Scaramellino's assertion
of attorney-client privilege but denied Blattman's motion to
compel nonetheless. The District Court did so based on
1 For precision, we will use the term "work-product protection,"
because "[a]lthough some writers refer to a work-product
'privilege,'" Westinghouse Elec. Corp. v. Republic of Philippines,
951 F.2d 1414, 1417 n.1 (3d Cir. 1991), the protection "encompasses
both a limited immunity from discovery and a qualified evidentiary
privilege," id. See generally Sherman L. Cohn, The Work Product
Doctrine: Protection, Not Privilege, 71 Geo.L.J. 917 (1983).
- 2 -
Scaramellino's assertion of the work-product protection. Blattman
then brought this appeal, and we now reverse.2
I.
Because "all parties indicate, at least implicitly, that
federal law controls," we apply the federal common law of
privilege. See Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 23
(1st Cir. 2011). "Questions of law are reviewed de novo, findings
of fact for clear error, and evidentiary determinations for abuse
of discretion." Id.
We first address Scaramellino's argument that, even if
we set the District Court's work-product protection ruling to one
side, we may affirm the District Court's order denying Blattman's
motion to compel because the District Court erred in rejecting
Scaramellino's assertion of the attorney-client privilege.
Because we reject that argument, we must address Blattman's
contention that the District Court erred in denying the motion to
compel based on Scaramellino's assertion of the work-product
protection.
A.
The attorney-client privilege, which is "narrowly
construed," "safeguard[s] communications between attorney and
2 Parts of the record before us are under seal. Sealed materials
have been fully considered even if not set out in detail in this
opinion.
- 3 -
client," but "protects 'only those communications that are
confidential and are made for the purpose of seeking or receiving
legal advice.'" Id. at 23-24 (quoting In re Keeper of Records
(Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st
Cir. 2003)). "That protection ceases, or is often said to be
'waived,' when otherwise privileged communications are disclosed
to a third party." Id. at 24 (quoting United States v. Mass. Inst.
of Tech., 129 F.3d 681, 684 (1st Cir. 1997)).
In rejecting Scaramellino's assertion of the attorney-
client privilege in his opposition to Blattman's motion to compel,
the District Court ruled that Scaramellino waived any such
privilege because he shared the documents at issue with Blattman.
Scaramellino argues in response that "the disclosure of th[e]se
documents to . . . Blattman d[id] not waive any applicable
privilege" because he and Blattman were co-clients and shared areas
of "common interest" at the time that the documents at issue were
prepared.
The District Court made no finding, however, that
Scaramellino and Blattman were co-clients or that they enjoyed a
"common interest" privilege.3 The record certainly does not compel
3 In fact, the District Court made no express finding regarding
the existence of an attorney-client privilege that Scaramellino
would be entitled to assert but for waiver, and we note that at
most it appears the District Court only concluded that even if an
attorney-client privilege attached (i.e., the District Court
- 4 -
the conclusion that such a relationship or "common interest"
existed.4 For example, the record shows that Scaramellino did not
sign an engagement letter with Blattman's lawyers, that
Scaramellino had released claims against the Delaware Action
defendants that Blattman was considering pursuing, and that
Scaramellino had affirmatively disclaimed any interest in pursuing
litigation. We thus find no error in the District Court's
attorney-client privilege ruling.
B.
We turn, then, to Blattman's challenge to the District
Court's ruling denying his motion to compel based on Scaramellino's
asserted reliance on work-product protection. This protection
encompasses "work done by an attorney in anticipation of . . .
litigation from disclosure to the opposing party." In re Grand
Jury Subpoena (Custodian of Records, Newparent, Inc.), 274 F.3d
563, 574 (1st Cir. 2001).
simply assumed without deciding there was a privilege) it was
waived.
4 "Co-client representations must . . . be distinguished from
situations in which a lawyer represents a single client, but
another person with allied interests cooperates with the client
and the client's lawyer." See Restatement (Third) of the Law
Governing Lawyers § 75 cmt. c (2000). But, even if we assume that
the record could supportably establish that Scaramellino was also
represented by Blattman's lawyers, "clients of the same lawyer who
share a common interest are not necessarily co-clients," as they
may "have merely entered concurrent but separate representations."
See id. § 75.
- 5 -
Depending on the circumstances, a document can contain
attorney work product, and thus fall within the protection, even
though a person other than an attorney, such as the attorney's
client or agent, drafts the document. See Fed. R. Civ. P. 26, see
also United States v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir.
2010) (explaining that the fact that a non-attorney created a
document "does not exclude the possibility" that the document
contains the "thoughts and opinions of counsel [of the party
asserting the protection,] developed in anticipation of
litigation," and is, therefore, potentially protectable as work-
product). Moreover, disclosure of work-product to a third-party
does not necessarily waive the protection; "only disclosing
material in a way inconsistent with keeping it from an adversary
waives work product protection." Mass. Inst. of Tech., 129 F.3d
at 687 (internal quotation marks omitted).
In defending this part of the District Court's ruling on
appeal, Scaramellino does not dispute the correctness of the
District Court's factual finding that Scaramellino created the
documents at issue to assist Blattman in preparing Blattman's
litigation strategy, a finding that would appear to undermine
Scaramellino's assertion of the work-product protection. See 4
James Wm. Moore, et al., Moore's Federal Practice ¶ 26.15[2] at
26-303 (2d. ed. 1994) (explaining that "[w]here a party seeks work
product material from his own attorney or agent . . . the [work-
- 6 -
product] doctrine is inapplicable"). He also does not contend
that, if that finding accurately describes his motivation in
preparing the documents at issue, the District Court's ruling that
he may assert work-product protection to defeat Blattman's motion
to compel is correct.
Instead, Scaramellino contends that the District Court's
ruling may be sustained because its express finding about his
motivation in creating the documents was only a partial one.
Specifically, Scaramellino contends that, in denying Blattman's
motion to compel on the basis of the work-product protection, the
District Court "implicitly incorporated" a further finding
regarding his motivation in preparing the documents at issue.
According to Scaramellino, that further implicit finding was that
he had prepared the documents for attorneys he shared with
Blattman, so that those attorneys could provide legal advice
concerning potential claims held not only by Blattman, but also by
Scaramellino himself and by E2.0 investors that Scaramellino
alleges that he represented. Thus, it is on the basis of his
positing of that implicit finding that he contends that the
District Court correctly ruled that he was entitled to assert the
work-product protection to defeat Blattman's motion to compel.
Scaramellino points to no authority, however, to support
his contention that such a finding, if made and supportable, would
provide a basis for affirming the District Court's ruling as to
- 7 -
work-product protection. But see In re Grand Jury Subpoena, 274
F.3d at 574 (concluding that where a party seeking to assert work-
product protection -- e.g., Scaramellino -- "effectively
concede[s] that the work was performed, at least in part, for [a
party seeking to waive the protection]," waiver by the party
seeking to waive the protection -- e.g., Blattman -- "negates . . .
[the] potential claim of [protection]" of the party seeking to
assert work-product protection). Moreover, even if we were to
assume that Scaramellino is correct about the legal significance
of the District Court having made the implied finding that
Scaramellino posits, he confronts a different and even more
fundamental problem: We do not read the District Court's decision
to rest on the incorporation of such a finding.
In arguing that we should read such a finding into the
District Court's opinion, Scaramellino relies on United States v.
Tibolt, 72 F.3d 965, 969-70 (1st Cir. 1995). But, there we
considered whether we should discern an implicit finding in a
motion to suppress "[w]here . . . there [we]re no explicit factual
findings." 72 F.3d at 969. Here, by contrast, the District Court
made an explicit factual finding regarding the very point in
dispute -- Scaramellino's motivation behind the creation of the
documents at issue. Thus, Scaramellino asks us to do something
quite different from what was done in Tibolt. He asks us, in
effect, to substitute for the District Court's sole express finding
- 8 -
as to Scaramellino's motivation a finding that the District Court
never saw fit to announce. The record certainly does not compel
that finding. If anything, it suggests otherwise, as Scaramellino
himself testified, for example, that, in drafting the documents at
issue, he was serving as a "law clerk" for Blattman in order to
assist Blattman with his anticipated litigation. And so, given
what the record shows regarding Scaramellino's motivation, we
decline to do what Scaramellino asks.
Scaramellino advances no other ground for affirming the
District Court's work-product protection ruling. Nor have we
identified any of our own. We thus conclude that the District
Court erred in denying Blattman's motion to compel on the basis of
the work-product protection.
II.
The District Court's order denying the motion to compel
is reversed. Each party shall bear their own fees and costs.
- 9 -