ERIC BLATTMAN, individually and as an assignee of certain former members of E2.0 LLC, Plaintiff - Appellant,
THOMAS SCARAMELLINO, Respondent - Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS HON. RICHARD G. STEARNS, U.S. DISTRICT JUDGE
Marcus McNichols, with whom Williams & Connolly LLP,
Christopher E. Hart, Daniel L. McFadden and Foley Hoag LLP
were on brief, for appellant.
S. Cashman, with whom David S. Godkin and Birnbaum &
Godkin, LLP were on brief, for appellee.
Howard, Chief Judge, Lipez and Barron, Circuit Judges.
BARRON, Circuit Judge.
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.
deposition, Scaramellino refused to answer questions about
certain documents by asserting attorney-client privilege and
work-product protection. 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 Scaramellino's assertion of the
work-product protection. Blattman then brought this appeal,
and we now reverse.
"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.
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.
attorney-client privilege, which is "narrowly construed,
" "safeguard[s] communications between attorney and
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)).
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
District Court made no finding, however, that Scaramellino
and Blattman were co-clients or that they enjoyed a
"common interest" privilege. The record
certainly does not compel the conclusion that such a
relationship or "common interest"
existed. 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