Eric Blattman v. Thomas Scaramellino

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).

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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.

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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 attorneyclient

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

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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.

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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 workproduct).

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-

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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

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work-product protection. But see In re Grand Jury Subpoena, 274

F.3d at 574 (concluding that where a party seeking to assert workproduct

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

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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.

The District Court's order denying the motion to compel

is reversed. Each party shall bear their own fees and costs.