United States Court of Appeals 

For the First Circuit 

No. 17-1589 

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] 

Before 

Howard, Chief Judge, 

Lipez and Barron, Circuit Judges. 

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. 

May 17, 2018 
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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 

 

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.

II. 

The District Court's order denying the motion to compel 

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