Eric Blattman, Individually & 0 LLC v. Scaramellino
891 F.3d 1
1st Cir.2018Background
- This dispute arises from discovery in a Delaware federal case (merger litigation) where plaintiff Blattman sought to depose defendant Scaramellino in Massachusetts about documents Scaramellino prepared.
- Scaramellino invoked attorney-client privilege and work-product protection to refuse answering deposition questions about those documents.
- Blattman filed a motion in the District of Massachusetts to compel production and testimony; the District Court rejected the attorney-client privilege claim but denied the motion on work-product grounds.
- The District Court found Scaramellino drafted the documents to assist Blattman’s litigation strategy.
- On appeal, the First Circuit reviewed whether (1) the attorney-client privilege was waived and (2) whether the work-product protection properly defeated Blattman’s motion to compel.
- The First Circuit reversed the denial of the motion to compel, holding the District Court erred in applying work-product protection given the record.
Issues
| Issue | Plaintiff's Argument (Blattman) | Defendant's Argument (Scaramellino) | Held |
|---|---|---|---|
| Whether attorney-client privilege protects the documents | Privilege applies; Scaramellino’s disclosures did not waive it because of a shared legal interest with Blattman | Disclosure waived privilege or no common-interest/co-client relationship existed | District Ct. correctly found no established co-client/common-interest; privilege not sustained |
| Whether work-product protection bars discovery of the documents | Work-product was waived or inapplicable because documents were prepared to assist Blattman’s litigation | Documents are work-product (created for shared attorneys or in anticipation of litigation) and thus protected | Reversed: District Ct. erred in denying motion to compel on work-product grounds given the record showing documents were prepared to help Blattman’s litigation |
| Whether disclosure to a third party automatically waives work-product | Disclosure inconsistent with protection, so waiver argued by Blattman | Disclosure to Blattman does not necessarily waive work-product absent disclosure inconsistent with keeping material from an adversary | Court emphasized disclosure does not always waive work-product, but found the record showed Scaramellino prepared materials to assist Blattman, undermining his claim of protection |
| Whether an implicit factual finding (shared attorneys/common client) supports work-product assertion | N/A | District Court implicitly found materials were created for attorneys shared with Blattman, supporting protection | Court refused to infer such an implicit finding; record did not compel it and explicit finding contradicted that inference |
Key Cases Cited
- Lluberes v. Uncommon Prods., LLC, 663 F.3d 6 (1st Cir. 2011) (federal common law governs privilege questions; standards of review)
- In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (1st Cir. 2003) (scope of attorney-client privilege)
- Mass. Inst. of Tech. v. 129 F.3d 681 (1st Cir. 1997) (disclosure to third parties may waive privilege or work-product only when inconsistent with secrecy)
- In re Grand Jury Subpoena (Custodian of Records, Newparent, Inc.), 274 F.3d 563 (1st Cir. 2001) (definition and waiver principles for work-product protection)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (non-attorney created documents can still contain attorneys’ mental impressions and be work-product)
- United States v. Tibolt, 72 F.3d 965 (1st Cir. 1995) (when an appellate court may infer implicit factual findings from a lower court’s record)