IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN RE: 3M COMBAT ARMS

EARPLUG PRODUCTS LIABILITY

LITIGATION, Case No. 3:19-md-2885

 

 Judge M. Casey Rodgers

 Magistrate Judge Gary R. Jones 

This Document Relates to:

3M Company, et al. v. Top Class Actions, LLC

Case No. 3:20-mc-74

_____________________________________/

ORDER

This miscellaneous matter stems from a pending multidistrict litigation 

action in this Court (In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 

3:19-mc-2885-MCR-GRJ (N.D. Fla.)). Pending before the Court is the MDL 

Defendants’ motion to compel compliance with a discovery subpoena 

served on non-party Top Class Actions, LLC (“TCA”) pursuant to Federal 

Rule of Civil Procedure 45. ECF No. 1.

The MDL Defendants’ motion to compel has been thoroughly briefed. 

While the motion was pending in the United States District Court for the 

District of Arizona, TCA filed a response in opposition, ECF No. 10, the 

MDL Defendants filed a reply memorandum, ECF No. 12, and TCA and the 

MDL Defendants filed a “brief containing stipulations of fact and law[] and 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 1 of 19
2

identifying the remaining legal disputes[,]” ECF No. 17. Then, at the 

Arizona district court’s request, TCA and the MDL Defendants filed 

supplemental briefs addressing whether TCA has standing to assert 

attorney-client privilege and work product protection on behalf of the MDL 

Plaintiffs, ECF Nos. 23, 29, 31.

After the United States Judicial Panel on Multidistrict Litigation 

transferred to this Court the MDL Defendants’ motion, ECF No. 45, the 

undersigned granted the MDL Plaintiffs’ Leadership Counsel leave to 

intervene under Federal Rule of Civil Procedure 24(a)(2) and set an 

additional briefing schedule limited to the MDL Plaintiffs’ opposition, ECF 

No. 48. The MDL Plaintiffs filed a response to the MDL Defendants’ motion 

to compel, ECF No. 50, and the MDL Defendants filed a reply 

memorandum, ECF No 51.

Accordingly, the MDL Defendants’ motion to compel is ripe for 

consideration. For the reasons discussed below, the MDL Defendants’ 

motion to compel is due to be GRANTED.

I. BACKGROUND

TCA runs a website (http://www.topclassactions.com) “that provides 

information, among other things, about class actions, class action 

settlements, and class action investigations.” ECF No. 10-1 at 1. TCA’s 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 2 of 19
3

website contains two categories of content for its viewers—attorney 

advertising and articles or news alerts (written by TCA) concerning 

particular class actions (or, obviously, other mass tort cases). Id.; ECF No. 

10 at 2.

The “attorney advertising” on TCA’s website principally consists of 

articles paid for by attorneys looking for potential plaintiffs or putative class 

members (and identified as such). ECF No. 10-1 at 1. TCA works with the 

advertising attorney to determine the content for the article(s), during which 

the attorney shares his or her thoughts about what information a potential 

plaintiff might need and his or her thoughts, opinions, and mental 

impressions about the content. Id. at 2. TCA exchanges drafts of the 

advertisements with the attorney, and TCA holds in confidence any 

feedback from the attorney. Id.

Some of TCA’s advertising articles include a form for a potential 

plaintiff or putative class member to fill out so the potential plaintiff or 

putative class member is contacted by an attorney. Id. When the potential 

plaintiff or putative class member inputs information into the form and clicks 

“submit,” the information is transmitted directly to the law firm sponsoring 

the advertisement. Id. TCA retains the information submitted on the form 

in a database for the “sole purpose” of communicating about the 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 3 of 19
4

advertising with law firms but otherwise holds the information in confidence. 

Id. TCA asserts that it “does not review the content of the form 

submissions for any purpose other than assisting the law firm with its 

marketing.” Id.

Relevant here, TCA was engaged by attorneys to publish articles 

about the claims in this MDL. ECF No. 10-1 at 2; see also, e.g., ECF No. 

10-2 at 1 (“3M Ear Plugs Were Defective, Claim Servicemembers”); id. at 4

(“3M Combat Arms Earplugs Allegedly Defective”); id. at 7 (“3M Earplug 

Lawsuit Investigation into Military Hearing Loss, Tinnitus”); id. at 11 (“3M 

Claims to Have Immunity in Military Earplugs Lawsuits”); id. at 14 (“Over 

1,000 3M Military Ear Plugs Lawsuits Have Been Filed Alleging a 

Dangerous Defect”). Each published article was accompanied by a form, 

viewable on the sidebar of the browser, soliciting viewers to “join a free 3M 

Ear Plugs class action lawsuit investigation” by providing their contact 

information, relevant military history, and supposed injuries. See, e.g., ECF 

No. 10-2 at 1–3. TCA advised viewers of the following before they could

submit a completed form:

Any information you submit to Top Class Actions may be 

shared with attorneys or law firms to facilitate formation of 

an attorney-client relationship. As such, it is intended that 

the information will be protected by attorney-client privilege, 

but it is possible that Top Class Actions or such attorneys 

may be ordered by a court of law to produce such 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 4 of 19
5

information in certain legal situations. Also, you are not 

formally represented by a law firm unless and until a 

contract of representation is signed by you and the law firm.

Id. at 2 (emphasis in original).

At least one advertising article concerning this MDL included the 

following disclaimer:

Top Class Actions is not a law firm, lawyer referral service, or 

prepaid legal services plan. We do not endorse or recommend 

any third-party claims processing company, lawyer, or law firm 

who participates in the network. We do not make any 

representation, and have not made any judgment, as to the 

qualifications, expertise, or credentials of any participating 

lawyer or processing group. No representation is made that the 

quality of the legal services or claims processing to be performed 

is greater than the quality of legal services or claims processing 

performed by other lawyers or claims processing group. The 

information contained herein is not legal advice. Any 

information you submit to Top Class Actions does not 

create an attorney-client relationship and might not be 

protected by attorney-client privilege. Instead, your 

information will be forwarded to an attorney or claims processing 

firm for the purpose of a confidential review and potential 

representation. You should not use this website to submit 

confidential, time-sensitive, or privileged information. All 

photos contained on this website are of models and do not depict 

clients.

Id. at 9 (emphasis added).

When these articles were published, and at all relevant times,1 TCA 

maintained a “Legal Notice” on its website. See, e.g., ECF No. 12-1 

1 As the MDL Defendants explain in their first reply memorandum, TCA revised its “Legal 

Notice” since the filing of the instant motion to compel. ECF No. 12 at 5. TCA does not 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 5 of 19
6

(archived screenshot dated March 29, 2020). Under the heading “USERPROVIDED CONTENT,” TCA informed viewers that “[c]ontent and/or 

information provided by [them] through this website is considered nonconfidential and non-proprietary.” ECF No. 12-1 at 4. Under the 

subheading “How TCA Discloses Your Personal Information,” TCA advised

that it “cannot guarantee that the information [viewers] submit will not end 

up in the hands of the company or person that [they] are complaining 

about.” Id. at 5.

On February 7, 2020, the MDL Defendants served a Rule 45 

discovery subpoena on TCA seeking the production of various categories 

of documents and communications seemingly related to this litigation, 

including: 

1. All documents relating to any Claimant2

, including any 

information collected from any Claimant, analysis of the scope or 

amount of any Claims3, database information, forms, 

presentations, spreadsheets, audio or visual recordings, 

dispute the authenticity of the archived versions of its “Legal Notice,” offered by the MDL 

Defendants, from March 29, 2020, ECF No. 12-1, and December 16, 2019, ECF No. 12-

2, which are materially identical.

2 Defendants use the term “Claimant” to refer to “(a) all plaintiffs in the CAE MDL and 

Related Actions, (b) all claimants that entered into the Tolling Agreement with 

Defendants, (c) all persons that have contacted you regarding potential claims against 

Defendants based on use of CAE; and (d) all other Persons that have asserted or may 

assert claims against Defendants based on use of CAE.” ECF No. 1-1 at 6.

3 Defendants use the term “Claim” to refer to “any claim(s) or cause(s) of action alleging 

personal injury and associated harms caused by using CAE.” ECF No. 1-1 at 6.

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 6 of 19
7

photographs, images, and other any other data or data 

compilations.

2. All documents relating to any analysis done by you or sent to 

you by any Person, including any Plaintiffs’ Law Firm or any other 

lawyer, regarding any Claimant(s) or any of their Claims.

3. All documents relating to the referral of any Claimant(s) to a 

lawyer, including the date of and amount charged for the 

referral(s).

4. All documents relating to marketing or advertising directed to 

actual or potential Claimants, or the solicitation of Claimants to 

join the CAE MDL or any Related Action.

5. All documents relating to your agreements with any Plaintiffs’ 

Law Firm or other lawyers regarding the CAE MDL or Related 

Actions

6. All communications between you and any Plaintiffs’ Law Firm 

or other lawyers related to the Claimants and any of their Claims.

7. All documents regarding any financial interest that any other 

Person, including any Plaintiffs’ Law Firm, has in you.

8. All documents relating to your ownership by any other Person, 

including any Plaintiffs’ Law Firm.

ECF No. 1-1 at 11–12.

TCA objected to the subpoena in a written letter to the MDL 

Defendants, ECF No. 1-3, but it eventually agreed to produce select 

documents responsive to Request Nos. 3, 4, 5, and 6, ECF No. 1-4. TCA 

objected to Request Nos. 1 and 6 to the extent any responsive documents 

contained “confidential, attorney-client privileged, or attorney work 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 7 of 19
8

product[,]” to Request No. 2 to the extent any responsive documents “were 

prepared in anticipation of litigation of contain attorney mental impressions 

or opinions about the case[,]” and to Request Nos. 7 and 8 as “intrusive 

and unlikely to lead to the discovery of admissible evidence[.]” ECF No. 1-

4 at 3–4. TCA and the MDL Defendants continued to meet-and-confer on 

the scope of the subpoena and TCA’s objections thereto, including the 

detail provided in TCA’s initial privilege log, which resulted in the production 

of additional documents. ECF No. 1 at 2–4; ECF No. 10 at 5.

On June 9, however, TCA maintained its privilege, work product

protection, and relevance objections to Request Nos. 1, 2, 6, 7, and 8, ECF 

No. 1-9, and provided the MDL Defendants an updated privilege log of the 

documents being withheld, ECF No. 1-10. Each of the documents on 

TCA’s privilege log is an individual email or email thread regarding the 

contact information for “a client,” “strategy relating to pursuing MDL cases,” 

or an attorney’s “rationale,” “impressions,” “opinion,” or “questions” about a 

“client” or “potential client.” Id. at 2–4.

II. DISCUSSION

The MDL Defendants contend that the assertions of attorney-client 

privilege and work product protection stemming from a potential plaintiff’s 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 8 of 19
9

response to TCA’s advertising articles are untenable4 and, thus, seek to 

compel production of the documents listed in TCA’s privilege log. ECF No. 

1. Because the party invoking the privilege bears the burden of proving its 

existence, In re Grandy Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 

1987), and “[t]he inquiry into whether documents are subject to a privilege 

is a highly fact-specific one,” In re Grand Jury Proceedings, 220 F.3d 568, 

571 (7th Cir. 2000), the Court will examine in turn the parties’ arguments as 

to attorney-client privilege and work product protection.

A. TCA’s Standing

As an initial matter, the Arizona district court directed TCA and the 

MDL Defendants to submit supplemental briefs addressing the issue of 

whether TCA has standing to resist production in response to the MDL 

Defendants’ subpoena based on assertions of attorney-client privilege or 

work product protection. ECF No. 22. TCA, citing the Restatement (Third) 

of the Law Governing Lawyers, argues it has standing to object because it 

acts as a lawyer’s agent, which “must invoke the privilege when doing so 

appears reasonably appropriate.” ECF No. 23 at 2, 6. The MDL 

4 Defendants are no longer pursuing additional documents responsive to Request Nos. 7 

and 8. ECF No. 51 at 2 n.1. Therefore, the Court need not address the parties’ arguments 

as to whether these requests seek discovery relevant to the claims and defenses at issue 

in this MDL.

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 9 of 19
10

Defendants insist that TCA does not have standing because it does not 

represent either the client or the attorney. ECF Nos. 29, 31.

The Court agrees with the MDL Defendants, and the Arizona district 

court, that these privileges are typically raised by the party or the party’s 

attorney. See In re Cal. Pub. Utils. Comm’n, 892 F.2d 778, 781 (9th Cir. 

1989) (the rule governing work product protection “limits its protection to 

one who is a party (or a party's representative) to the litigation in which 

discovery is sought”); United States v. Layton, 855 F.2d 1388, 1406 (9th 

Cir. 1988) (the attorney-client privilege “can be invoked only at the instance 

of the client”). Moreover, TCA fails to provide the Court with any controlling 

or persuasive authority holding that an “agent” of a party’s lawyer may 

litigate the issue of attorney-client privilege or work product protection in 

opposition to a motion to compel. Defendants point out that numerous 

federal courts have held to the contrary. See, e.g., Syngenta Crop 

Protection, LLC v. Willowood, LLC, No. MC16-5019BHS, 2016 WL 

7231400, at *3 (W.D. Wash. Dec. 14, 2016); Compulit v. Banctec, Inc., 177 

F.R.D. 410, 411 (W.D. Mich. 1997).

The Court, however, need not resolve definitively the question of

whether TCA has standing because the MDL Plaintiffs have since 

intervened in this discovery dispute, asserted attorney-client privilege and 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 10 of 19
11

work product protection over the communications in issue, and adopted by 

incorporation TCA’s arguments in support thereof. ECF No. 50. Therefore, 

the Court will only address the merits of the MDL parties’ arguments as to 

these objections.

B. Attorney-Client Privilege

The purpose of the attorney-client privilege is to encourage the client 

to communicate freely with the attorney. United States v. Noriega, 917 

F.2d 1543, 1550 (11th Cir. 1990). The parties agree that Arizona’s 

substantive law on attorney-client privilege applies to this dispute. Fed. R. 

Evid. 501.5 As such, the MDL Plaintiffs “must show that 1) there is an 

attorney-client relationship, 2) the communication was made to secure or 

provide legal advice, 3) the communication was made in confidence, and 4) 

the communication was treated as confidential.” Clements v. Bernini in and 

for Cty. of Pima, 471 P.2d 645, 651 (Ariz. 2020). Each of these elements is 

5 The parties’ choice of law seems correct for at least two reasons. First, the transferee 

district court in an MDL applies the state law, including its choice of law rules, of the 

transferor court. In re Takata Airbag Prods. Liab. Litig., 193 F. Supp. 3d 1324, 1332 (S.D. 

Fla. 2016). Second, Arizona has the most significant relationship with the 

communications in issue, In re: Bard IVC Filters Prods. Liab. Litig., MDL No. 15-2641, 

2016 WL 3970338, at **1–2 (D. Ariz. July 25, 2016); In re Yasmin and Yaz (Drospirenone) 

Mktg., Sales Practices, and Prods. Liab. Litig., No. 3:09-md-2100-DRH-PMF, 2011 WL 

1375011, at *9 (S.D. Ill. Apr. 12, 2011) (citing Restatement (Second) of Conflict of Laws 

§ 139). In any event, the determination of which state’s privilege law applies to this 

dispute is not a weighty consideration because the elements of the attorney-client 

privilege discussed herein are hornbook law in any domestic forum.

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 11 of 19
12

an essential ingredient without which the bread cannot bake. Yurick v. 

Liberty Mut. Ins. Co., 201 F.R.D. 465, 469 (D. Ariz. 2001).6

The MDL Plaintiffs’ claim of attorney-client privilege fails because 

they cannot show that the information a prospective plaintiff (or “Claimant”)

submitted in the form accompanying TCA’s advertising articles was made 

in confidence or treated as confidential. Arizona courts have suggested 

both objective and subjective tests for determining whether a party 

intended a communication be held in confidence. The subjective test looks 

to “the state of mind of the client” and “the circumstances under which the 

communication was made.” State v. Fodor, 880 P.2d 442, 448 (Ariz. Ct. 

App. 1994). The objective test looks to “where the client reasonably 

understood the conference to be confidential.” State v. Sucharew, 66 P.3d 

59, 65 (Ariz. Ct. App. 2003).

The record belies any suggestion that a prospective plaintiff could 

subjectively or reasonably believe they were submitting information to a 

lawyer through TCA in confidence or that it would remain confidential. The 

form itself advised viewers of the possibility that the information would be 

6 See also Evans v. Comcast Corp., No. 12-81203-CIV, 2013 WL 12139329, at *3 (S.D. 

Fla. July 3, 2013) (“If any one of these elements is missing—if the communication is not 

confidential, if it is not between the attorney and client (or prospective client), or if it does 

not relate to the matter of representation—the communication at issue is not covered by 

the privilege.”).

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 12 of 19
13

disclosed, ECF No. 10-2 at 2, one of TCA’s articles included a disclaimer 

explaining that the information submitted “might not be protected by 

attorney-client privilege” and instructing viewers not to “use [the] website to 

submit confidential, time-sensitive, or privileged information,” id. at 9, and, 

perhaps most importantly, TCA’s “Legal Notice” stated that “[c]ontent

and/or information provided by [viewers] through this website is considered 

non-confidential and non-proprietary,” ECF No. 12-1 at 4. Having been so 

warned, any claim that a potential plaintiff believed the information would 

be held by TCA in confidence rings hollow. See In re General Motors LLC 

Ignition Switch Litig., No. 14-MD-2543, 2018 WL 611759, at *1 (S.D.N.Y. 

Jan. 29, 2018) (the information submitted through the TCA website was not 

protected under attorney-client privilege); U.S. E.E.O.C. v. ABM Indust. 

Inc., 261 F.R.D. 503, 510 (E.D. Cal. 2009) (the attorney-client privilege did 

not apply to a potential client questionnaire when it did not “promise or 

intimate in any way that information disclosed in completing the 

questionnaire would remain confidential”).

The cases cited by the MDL Plaintiffs are inapposite. There is no 

meaningful dispute that responses to an attorney’s questionnaire to solicit 

clients or evaluate potential claims can be privileged in certain 

circumstances. See Deslandes v. McDonald’s USA, LLC, No. 1:17-cvCase 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 13 of 19
14

4857, 2019 WL 7480646 at *5 (N.D. Ill. July 17, 2019) (collecting cases). 

Take for example Barton v. U.S. Dist. Court for the Central Dist. of Cal., 

where, unlike here, the Ninth Circuit concluded there was no disclaimer of 

confidentiality because “the word ‘confidentiality’ nor the substance of a 

disclaimer of confidentiality [could] be found in the online questionnaire.” 

410 F.3d 1104, 1110 (9th Cir. 2005).7 And Vodak v. City of Chicago, 

where, unlike here, the questionnaire “promise[d] that the information 

provided [would] be held in strict confidence and used only by the attorneys 

providing legal representation.” No. 03-C-2463, 2004 WL 783051, at *2

(N.D. Ill. Jan. 16, 2004).

The cases following Vodak, and offered by the MDL Plaintiffs, are not 

persuasive because they did not address the confidentiality element of 

attorney-client privilege, or they appear to conflate it with the requirement 

that the communication was made to secure or provide legal advice. See 

Deslandes, 2019 WL 7480646, at *5 (“Courts in this district have generally 

found that these types of submissions to law firms are privileged if the 

person completing the questionnaire sought legal advice.”); E.E.O.C. v. 

Scrub, Inc., No. 09-C-4228, 2010 WL 2136807, at *9 (N.D. Ill. May 25, 

7 The Ninth Circuit’s decision in Barton also rested on a presumption of confidentiality in 

California law that does not apply in Arizona. 410 F.3d at 1110.

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 14 of 19
15

2010) (‘Where the questionnaires are completed by persons seeking legal 

representation, the privilege extends.”). This Court, instead, must take care 

to examine independently each essential element of the privilege—

attorney-client relationship, communication to secure or provide legal 

advice, and confidentiality—because “not all communications to one's 

lawyer are privileged.” Samaritan Found. v. Goodfarb, 862 P.2d 870, 874 

(Ariz. 1993).

In sum, the information a prospective plaintiff submitted to a lawyer 

through TCA’s website is not subject to the attorney-client privilege 

because it was not made in confidence or expected to be treated as 

confidential. TCA’s website expressly disclaimed any such intentions when 

it warned viewers that it could not “guarantee that the information [viewers] 

submit[ted would] not end up in” the MDL Defendants’ hands. ECF No. 12-

1 at 5. Therefore, TCA may not resist compliance with the MDL 

Defendants’ Rule 45 subpoena based on the attorney-client privilege.

C. Work Product Protection

Similar to the attorney-client privilege, the purpose of the work

product protection “is to protect the integrity of the adversary process by 

allowing a lawyer to work ‘with a certain degree of privacy, free from 

unnecessary intrusion by opposing parties and their counsel.’” Drummond 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 15 of 19
16

Co., Inc. v. Conrad & Scherer, LLP, 885 F.3d 1324, 1335 (11th Cir. 2018) 

(quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947)); see also In Re 

Murphy, 560 F.2d 326, 334 (8th Cir. 1977) (“The primary purpose of the 

work product privilege is to assure that an attorney is not inhibited in his 

representation of his client by the fear that his files will be open to scrutiny 

upon demand of an opposing party.”). The work product protection, 

nevertheless, “is distinct from and broader than the attorney-client 

privilege.” United States v. Nobles, 422 U.S. 225, 238 n.11 (1975).

Federal Rule of Civil Procedure 26(b)(3)(A) prohibits a party from 

discovering, with some exception, “documents and tangible things that are 

prepared in anticipation of litigation or for trial by or for another party or its 

representative[.]” Fed. R. Civ. P. 26(b)(3)(A). “The testing question for the 

work-product privilege ... is whether, in light of the nature of the document 

and the factual situation in the particular case, the document can fairly be 

said to have been prepared or obtained because of the prospect of 

litigation.” In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir.1998). In other 

words, “the key determinations in assessing the applicability of the work

product privilege are when and why the document or thing was created.” In 

re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19-md-2885, 2020 

WL 1321522, at *6 (N.D. Fla. Mar. 20, 2020).

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 16 of 19
17

The MDL Plaintiffs’ claim of work product protection is fraught with 

peril. First, the Court is not persuaded that the information being withheld 

qualifies as work product. The MDL Plaintiffs, ECF No. 50 at 16–17, adopt 

TCA’s assertion that it “redacted communications between TCA and the 

law firms relating to the attorney advertising” because “[t]he lawyers’ 

comments on the marketing reflects their opinions of the claim and 

strategy,” ECF No. 10 at 13. The communications in issue were created 

for the business purposes (marketing and advertising) of the attorneys 

utilizing TCA’s services, not in anticipation of impending litigation for a

particular plaintiff. See Drummond Co., Inc., 885 F.3d at 1334–35

(“Attorney work product protection extends to material obtained or prepared 

by counsel in the course of their legal duties provided that the work was 

done with an eye toward litigation.” (emphasis added)). As such, it is not 

work product exempt from production when it is otherwise discoverable. 

See Holbourn v. NCL (Bahamas) Ltd., 305 F.R.D. 685, 687 (S.D. Fla. 

2014) (work product protection does not extend to “materials or documents 

drafted or created in the ordinary course of business”); Shaprio v. U.S. 

Dep’t of Justice, 969 F. Supp. 2d 18, 36–37 (D.D.C. 2013) (documents 

“untethered to any particular claim in litigation” and not revealing “any legal 

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 17 of 19
18

strategy or other case-specific legal considerations” were not attorney work 

product).8

Second, the MDL Plaintiffs’ assertion of any “common interest” 

exception to waiver misses the mark. The “common interest” exception 

allows a party to share its work product with a third party without waiving 

the right to assert protection only “when the parties have a shared interest 

in actual or potential litigation against a common adversary[.]” Mitsui 

Sumitomo Ins. Co. v. Carbel, LLC, No. 09-21208-CIV, 2011 WL 2682958, 

at *4 (S.D. Fla. July 11, 2011). The problem for the MDL Plaintiffs is that 

the nature of the “common interest” between the advertising attorneys and 

TCA was solely commercial, not legal. Id. That is, TCA’s role was to 

advertise for paying attorneys, not to assist them in litigation against the 

MDL Defendants. TCA does not have any legal interest in the MDL 

Plaintiffs’ litigation, and the MDL Defendants are not an adversary to TCA. 

Indeed, TCA is not in the position to provide legal advice or discuss 

litigation strategy in any particular case because it “does not review the 

content of the form submissions for any purpose other than assisting the 

8 The facts of this dispute are easily distinguishable from that addressed by this Court in 

another MDL, where a corporate client retained a marketing firm to “assist ... in-house 

legal departments in monitoring and analyzing media coverage as part of in-house 

counsel's strategies and legal advice relating to threatened and ongoing litigation and 

actions by regulatory agencies[.]” In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-

md-2738, 2017 WL 6757558, at *9 (N.D. Fla. Dec. 29, 2017).

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 18 of 19
19

law firm with its marketing.” ECF No. 10-1 at 2. Therefore, any 

communication by the advertising attorneys to TCA reflecting the attorneys’ 

mental impressions about a particular case or claim in this MDL is 

inconsistent with the maintenance of secrecy to avoid disclosure to the 

MDL Defendants, United States v. Deloitte LLP, 610 F.3d 129, 140 (D.C. 

Cir. 2010), such that any work product protection was waived.

In sum, the communications between TCA and advertising attorneys 

described above do not enjoy work product protection and must be 

disclosed to the MDL Defendants.

III. CONCLUSION

Accordingly, it is ORDERED that the MDL Defendants’ Motion to 

Compel Discovery from Top Class Actions, ECF No. 1, is GRANTED. 

Objections to the MDL Defendants’ Rule 45 subpoena based on attorneyclient privilege and work product protection are OVERRULED.

DONE AND ORDERED this 12th day of March 2021.

s/Gary R. Jones GARY R. JONES

United States Magistrate Judge

Case 3:20-mc-00074-MCR-GRJ Document 52 Filed 03/12/21 Page 19 of 19