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Blattman v. Scaramellino

United States Court of Appeals, First Circuit

May 17, 2018

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

          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.

          Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

          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 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 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 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 ...


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