              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-680

                                 Filed: 7 June 2016

Mecklenburg County, No. 14-CVS-8495

FRIDAY INVESTMENTS, LLC, Plaintiff,

             v.

BALLY TOTAL FITNESS OF THE MID-ATLANTIC, INC. f/k/a Bally Total Fitness
of the Southeast, Inc. f/k/a/ Holiday Health Clubs of the Southeast, Inc. as successor-
in-interest to Bally Total Fitness Corporation; and BALLY TOTAL FITNESS
HOLDINGS CORPORATION, Defendants.


      Appeal by Defendants from Order entered 9 April 2015 by Judge Jesse B.

Caldwell III in Mecklenburg County Superior Court. Heard in the Court of Appeals

18 November 2015.


      Knox, Brotherton, Knox & Godfrey, by Lisa Godfrey, for Defendants-Appellants.

      Horack, Talley, Pharr & Lowndes, P.A., by Keith B. Nichols, for Plaintiff-
      Appellee.


      INMAN, Judge.


      This appeal requires us to consider the common interest doctrine, which

extends the attorney-client privilege to communications between and among multiple

parties sharing a common legal interest. We hold that an indemnification provision

in an asset purchase agreement, standing alone, is insufficient to create a common

legal interest between a civil litigant indemnitee and a third-party indemnitor.
   BALLY TOTAL FITNESS OF THE MID-ATLANTIC, INC. V. FRIDAY INVESTMENTS, LLC

                                  Opinion of the Court



      Bally Total Fitness of the Mid-Atlantic, Inc. (“Mid-Atlantic”) and Bally Total

Fitness Holding Corporation (“Holding”) (collectively “Defendants”) appeal the trial

court’s Order denying their Motion for a Protective Order on Supplementation of

Written Discovery and granting Plaintiff Friday Investments, LLC’s (“Plaintiff”)

Motion to Compel production of email and written communication between

Defendants and third party Blast Fitness Group (“Blast”). Defendants contend that

the trial court failed to recognize that they had entered into a tripartite attorney-

client relationship with Blast, so that communications between Defendants and Blast

are protected by the attorney-client privilege. After careful review, we affirm.

                                 Facts and Background

      In February 2000, the predecessor in interest of Mid-Atlantic entered into a

lease agreement with the predecessor in interest of Plaintiff for a 25,000 square foot

commercial suite in the Tower Place Festival Shopping Center in Charlotte, North

Carolina. The lease was guaranteed by Holding, the parent company of both Mid-

Atlantic and the original tenant. In 2012, Mid-Atlantic sold certain of its health

clubs, including the Tower Place Club, to Blast. The Asset Purchase Agreement

between Mid-Atlantic and Blast (the “Blast Agreement”) provided that the sale

transferred any “obligations . . . arising . . . under the Real Property Leases” of the

clubs sold. The Blast Agreement also included an indemnification clause wherein

Blast agreed to “defend, indemnify, and hold [Defendants] . . . harmless of, from[,]



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                                  Opinion of the Court



and against any [l]osses incurred . . . on account of or relating to . . . any Assumed

Liabilities, including those arising from or under the Real Property Leases after

closing.”

       Plaintiff brought suit against Defendants on 9 May 2014 in Mecklenburg

County Superior Court for payment of back rent and other charges under the lease.

Blast subsequently agreed to defend Defendants as provided for in the Blast

Agreement.

       Defendants and Plaintiff completed an initial exchange of documents and

answers to interrogatories on 24 October 2014. Defendants’ Senior Vice President

and General Counsel, Earl Acquaviva, was deposed by Plaintiff on 11 February 2015.

On 19 February 2015, counsel for Plaintiff sent an email to Defendants’ counsel

requesting copies of “post-suit correspondence and documents exchanged between

[Defendants] and Blast.” Defendants refused, and on 3 March 2015, Plaintiff filed a

Motion to Compel production of the requested documents. Defendants responded by

filing a Motion for a Protective Order on 24 March 2015, claiming that

communications between themselves and Blast were subject to attorney-client

privilege. On 25 March 2015, the trial court orally ordered Defendants to produce

the documents and a privilege log for in camera inspection.

       On 27 March 2015, Defendants submitted to the trial court the requested

documents and a privilege log.      After completing an in camera review of the



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                                         Opinion of the Court



documents, the trial court notified counsel via email on 2 April 2015 that it had denied

Defendants’ Motion for a Protective Order and granted Plaintiff’s Motion to Compel.

The trial court entered a written order on 13 April 2015 consistent with the court’s

email notice but granted a motion by Defendants to stay the decision for review by

this Court.

        Defendants timely appealed. The Record on Appeal was settled via stipulation,

pursuant to Rule 11 of the North Carolina Rules of Appellate Procedure, on 29 May

2015. The Record was amended on Defendants’ Motion on 24 July 2015 to include

the trial court’s 2 April 2015 email message.1 On 1 September 2015, Defendants filed

a “Motion to Submit Documents Under Seal,” seeking to transmit the documents

reviewed in camera to this Court for review.

   I.       Plaintiff’s Motion to Dismiss

        Plaintiff argues that a “substantial right” is not at stake because Defendants

waived their right to appeal the discovery order by failing to specifically assert their

attorney-client privilege during the initial round of discovery, and that Defendants’

subsequent Motion for a Protective Order was insufficient to constitute an objection.

We disagree.



        1 Defendants initially filed Notice of Appeal from the 2 April 2015 ruling communicated to
counsel via email, but they also filed Notice of Appeal from the order entered 13 April 2015. Both
notices are contained in the Record on Appeal. The email is not an order because it was not filed with
the Clerk of Court. N.C. Gen. Stat. § 1A–1, Rule 58 (2015) (“[A] judgment is entered when it is reduced
to writing, signed by the judge, and filed with the clerk of court.”) Accordingly, this opinion reviews
only the 13 April 2015 Order.

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                                   Opinion of the Court



      “An interlocutory order is one made during the pendency of an action, which

does not dispose of the case, but leaves it for further action by the trial court in order

to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C.

357, 362, 57 S.E.2d 377, 381 (1950). While there is generally “no right of immediate

appeal from interlocutory orders and judgments,” Goldston v. Am. Motors Corp., 326

N.C. 723, 725, 392 S.E.2d 735, 736 (1990), immediate appeals are available under

N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1) (2015) if the order “deprives the appellant

of a substantial right which would be lost absent immediate review.” N.C. Dep’t of

Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995).

      Both this Court and the North Carolina Supreme Court have recognized that

a trial court’s “determination of the applicability of [attorney-client] privilege . . .

affects a substantial right and is therefore immediately appealable.” In re Miller, 357

N.C. 316, 343, 584 S.E.2d 772, 791 (2003); see also Evans v. U.S. Auto. Ass’n, 142 N.C.

App. 18, 24, 541 S.E.2d 782, 786 (2001) (holding that the appeal of a trial court order

denying the assertion of attorney client privilege after an in camera review affects “a

substantial right which would be lost if not reviewed before the entry of final

judgment”).

      Nevertheless, the availability of such appeals is contingent upon the proper

assertion of the claimed privilege. In K-2 Asia Ventures v. Trota, this Court held that

to assert a statutory privilege for interlocutory review, the appellant must have



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                                       Opinion of the Court



complied with Rule 34(b) of the North Carolina Rules of Civil Procedure by lodging

specific objections to individual discovery requests. 215 N.C. App. 443, 446–47, 717

S.E.2d 1, 4–5 (2011). Blanket objections that broadly assert a privilege without

attaching it to a particular request, such as the one made by one set of defendants in

K-2 Asia Ventures, are not only procedurally deficient but also fail to satisfy the

requirement that the assertion of privilege be “not otherwise frivolous or

insubstantial.” Id. at 447, 717 S.E.2d at 4 (internal quotation marks and citations

omitted).

       Plaintiff attempts to draw a parallel to K-2 Asia Ventures, noting that

Defendants asserted no particularized claim of attorney-client privilege in their

responses to the initial round of discovery. We are unpersuaded. None of the initial

discovery requests expressly sought correspondence between Defendants and Blast.

The initial discovery request that most plainly encompasses these documents—if the

documents are not privileged—is the fourth “Request for Production of Documents,”

which requests “[a]ll non-privileged correspondence or written communication of any

kind between [Defendants] and any other person or entity concerning the [Tower

Place Club], Lease Agreement, Guaranty, or any other issues described or referenced

in the Pleadings in this action.”2 (Emphasis added.) Given the limiting language in


       2 Plaintiff argues that correspondence between Defendants and Blast also was within the scope
of several other specific discovery requests that were not limited to non-privileged information.
Request 4, which specifically seeks communications between Defendants and “any other person or



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                                         Opinion of the Court



the request, it is unreasonable—for the purpose of determining waiver—to require

Defendants to have first acknowledged the existence of correspondence they

considered privileged and to have objected to production in response to a request for

“non-privileged” information. 3

        The record reflects that when faced with a specific request for their

communications with Blast, Defendants promptly asserted the attorney-client

privilege. During the 11 February 2015 deposition, counsel for Plaintiff asked the

deponent, Mid-Atlantic’s General Counsel Earl Acquaviva, to describe “all of the

conversations that you have had personally with Blast or any representatives of Blast

about this lawsuit.”        Defendants’ counsel immediately objected on the basis of

attorney-client privilege and advised the deponent not to answer. Plaintiff’s further

attempts to probe the issue were all met with similar objections by Defendants’

counsel, and the deponent refused to answer such questions.




entity” most plainly encompasses correspondence between Defendants and non-parties to the
litigation, such as Blast. Because we affirm the trial court’s ruling that the documents at issue are
responsive to Request 4, analysis of the other discovery requests is unnecessary.
         3 Our holding should not be construed to encourage litigants to assert particularized objections

only when a request clearly seeks privileged information or documents. The best practice for counsel
responding to discovery is to give each request the broadest possible interpretation and to assert
objections to producing information or documents the litigant believes to be beyond the scope of
discovery allowed by the Rules of Civil Procedure. Even when privilege is claimed in good faith, the
adage that it is easier to beg forgiveness than to seek permission undermines public confidence in the
legal profession and our justice system. Defendants would have saved themselves, Plaintiff, the trial
court, and this Court significant resources had they more broadly construed Plaintiff’s requests and
asserted a particularized objection in the first place.

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                                     Opinion of the Court



         Based on the foregoing details in the record, we hold that Defendants properly

asserted the attorney-client privilege in a manner that is neither frivolous nor

insubstantial and that this interlocutory appeal affects a “substantial right” of

Defendants. We therefore deny Plaintiff’s motion to dismiss.

   II.      Defendants’ Motion to Submit Documents Under Seal

         In support of their argument that the trial court failed to recognize a tripartite

attorney-client relationship between themselves, Blast, and their counsel,

Defendants submitted a “Motion to Submit Documents Under Seal” to this Court to

examine the documents reviewed in camera by the trial court. We decline to grant

this motion because it is improper, untimely, and unfairly prejudicial.

         This Court has repeatedly held that “[i]t is the appellant’s duty and

responsibility to see that the record is in proper form and complete.” State v.

Williamson, 220 N.C. App. 512, 516, 727 S.E.2d 358, 361 (2012) (quoting State v.

Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983)). Defendants failed to “request[]

that the trial court review the documents in camera and then seal the documents for

possible appellate review.” Miller v. Forsyth Mem’l Hospital 174 N.C. App. 619, 621,

625 S.E.2d 115, 116 (2005). Defendants could have remedied this failure in the trial

court prior to settling the Record on Appeal.

         Even after the Record on Appeal has been settled in the trial court, but prior

to the filing of the Record on Appeal, a party may move this Court to “order additional



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                                   Opinion of the Court



portions of a trial court record or transcript sent up and added to the record on

appeal.” N.C. R. App. P. 9(b)(5)(b) (2015). Once the record has been filed, a party

may still move to amend the record at any time prior to the filing of the opposing

party’s responsive brief. N.C. R. App. P. 9(b)(5)(a) (2015). Here, Defendants failed to

ask the trial court to seal the records for appellate review, did not move this Court to

order the records be sent from the trial court, and filed its unorthodox motion several

days after the submission of Plaintiff’s Brief.

      To allow these documents to enter the record after briefing would be unfairly

prejudicial to Plaintiff because such a significant amendment of the record would

likely require both parties to re-brief the case to address legal issues not previously

raised. For example, this Court reviews a trial court’s in camera review of documents

placed under seal de novo, as opposed to for abuse of discretion.        E.g., State v.

Minyard, 231 N.C. App. 605, 615, 753 S.E.2d 176, 184 (2014); State v. McCoy, 228

N.C. App. 488, 492, 745 S.E.2d 367, 370 (2013). Amending the appellate record to

include these documents would add issues on appeal, including whether the trial

court erred in its in camera review and whether the documents, based on this Court’s

in camera review, were subject to attorney-client privilege under the five factor

Murvin test. Raymond v. N.C. Police Benevolent Ass’n, 365 N.C. 94, 100–01, 721

S.E.2d 923, 928 (2011); State v. Murvin, 304 N.C. 523, 531, 284 S.E.2d 289, 294

(1981). Accordingly, we deny Defendants’ Motion to Submit Documents Under Seal.



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                                  Opinion of the Court



      Because the question presented by Defendants may be addressed by reference

to the nature of the relationship between the parties and the existing Record on

Appeal, the Court can reach the merits of this appeal without reviewing the

documents submitted to the trial court for in camera review.

   III.   Tripartite Attorney-Client Privilege (Common Interest Doctrine)

      Defendants claim that the trial court abused its discretion by “disregard[ing]

a tripartite attorney-client relationship” between Defendants, their attorneys, and

Blast and ordering the production of communications between them. We hold that

Defendants have failed to show that the trial court’s ruling was either “manifestly

unsupported by reason” or “arbitrary.” See K-2 Asia Ventures, 215 N.C. App. at 453,

717 S.E.2d at 8 (citation and quotation marks omitted).

                               A. Standard of Review

      This Court reviews trial court orders relating to discovery issues for abuse of

discretion. Id. To prevail, an appellant must show that the trial court’s ruling was

“manifestly unsupported by reason” and “so arbitrary that it could not have been the

result of a reasoned decision.” State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708

(1998).

                                     B. Analysis

      Although attorney-client arrangements between two or more clients have been

recognized by North Carolina courts for more than half a century, Dobias v. White,



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                                        Opinion of the Court



240 N.C. 680, 684–85, 83 S.E.2d 785, 788 (1954), there is a dearth of controlling

appellate precedent explaining the precise nature of these arrangements and the

extension of privilege invoked in disputes with third parties.4                 Accordingly, our

discussion of the issue presented in this case is best addressed by reference to not

only the limited controlling authority from our state appellate courts, but also non-

binding, persuasive decisions by other courts.

       Arrangements between two or more parties to obtain legal counsel for a shared

legal purpose are known as “tripartite” attorney-client relationships. Raymond, 365

N.C. at 98–99, 721 S.E.2d at 926–27. A tripartite relationship most commonly exists

“when an insurance company employs counsel to defend its insured against a claim.”

Id. at 98, 721 S.E.2d at 926.5 A tripartite relationship may also exist between an

individual and a “trade association or lobbying group that represents a special

interest if there is specific, ongoing litigation.” Raymond, 365 N.C. at 99, 721 S.E.2d

at 927 (citations omitted).




       4  Our Supreme Court in Dobias did not address a claim of privilege by members of a tripartite
relationship adverse to a third party, but rather a claim of privilege by one party seeking to bar an
adverse party from discovering documents related to a business transaction in which the parties had
employed joint counsel. The Supreme Court held that “as a general rule, where two or more persons
employ the same attorney to act for them in some business transaction, their communications to him
are not ordinarily privileged inter sese.” 240 N.C. at 685, 83 S.E.2d at 788.
        5 The most often cited controlling authority recognizing a tripartite relationship between

insurer, insured, and counsel retained by the insurance company to represent the insured is
Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 602–03, 617 S.E.2d 40, 45–46 (2005).
However, like Dobias, Nationwide Mut. Fire Ins. Co. sheds little light on the issue presented here,
because that appeal arose from an insurance coverage dispute between the insured and the insurer.
Id.

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                                   Opinion of the Court



      The linchpin in any analysis of a tripartite attorney-client relationship is the

finding of a common legal interest between the attorney, client, and third party. See

Raymond, 365 N.C. at 100, 721 S.E.2d at 927 (tripartite attorney-client relationship

existed between attorney, client, and benevolence organization due to the common

interest of “protecting and promoting the livelihood” of the client). “[T]he parties

must first share a common interest about a legal matter.” United States v. Aramony,

88 F.3d 1369, 1392 (4th Cir. 1996).

      North Carolina courts have yet to formulate a bright line rule or articulate

criteria for determining whether a common legal interest exists to extend the

attorney-client privilege between multiple parties. Instead, our courts have engaged

in specific analysis of the facts in each case involving this issue. See, e.g., Raymond,

365 N.C. at 100, 721 S.E.2d at 927 (common legal interest based on mission of

benevolent organization); Nationwide Mut. Fire Ins., 172 N.C. App. at 602–03, 617

S.E.2d at 45–46 (common legal interest based on contract between insured and

insurer).

      All fifty states and federal courts have recognized the extension of the attorney-

client privilege to certain tripartite relationships under various monikers including,

inter alia, the “joint defense privilege,” the “common interest privilege,” the “common

interest doctrine,” and the “common defense rule.” See, e.g., Aramony, 88 F.3d at

1392; United States v. Schwimmer, 892 F.2d 237, 243–46 (2d. Cir. 1989); United



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                                  Opinion of the Court



States v. McPartlin, 595 F.2d 1321, 1336–37 (7th Cir. 1979); Ferko v. NASCAR, 219

F.R.D. 396, 401–03 (E.D Tex. 2003); Craig S. Lerner, Conspirators’ Privilege and

Innocents’ Refuge: A New Approach to Joint Defense Agreements, 77 Notre Dame L.

Rev. 1449, 1491 (2002). To extend the attorney-client privilege between or among

them, parties must (1) share a common interest; (2) agree to exchange information

for the purpose of facilitating legal representation of the parties; and (3) the

information must otherwise be confidential.        Schwimmer, 892 F.2d at 243–244.

Although prudent counsel would always put a representation agreement in writing,

there is no requirement that the agreement be in writing. See McPartlin, 595 F.2d

at 1336. Despite being labeled a “privilege” by some courts, the common interest

doctrine does not recognize an independent privilege, but is “an exception to the

general rule that the attorney-client privilege is waived upon disclosure of privileged

information [to] a third party.” Ferko, 219 F.R.D. at 401. Extension of the attorney-

client privilege to these relationships “serves to protect the confidentiality of

communications passing from one party to the attorney for another party where a

joint defense effort or strategy has been decided upon and undertaken by the parties

and their respective counsel.”    Schwimmer, 892 F.2d at 244.        The extension of

privilege applies in disputes between third parties and one or more members of the

tripartite arrangement, but not in disputes inter sese. Nationwide Mut. Fire Ins. Co.,

172 N.C. App. at 602–03, 617 S.E.2d at 45–46 (2005) (insured who was represented



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                                  Opinion of the Court



by counsel retained by insurance company in tort litigation by a third party against

the insured was entitled, in separate litigation against the insurer, to discover

communications between the insurer and counsel related to the defense strategy in

underlying litigation); Dobias, 240 N.C. 680 at 683, 83 S.E.2d at 788 (seller and

purchaser of real estate were each entitled to discover the other’s communications

about the deal with their common real estate attorney).

      While not binding, decisions by several federal courts and the North Carolina

Business Court provide some clarity as to what constitutes a common legal interest,

distinguishing it in particular from a common business interest. “For the privilege to

apply, the proponent must establish that the parties had some common interest about

a legal matter.” In re Grand Jury Subpoena Under Seal, 415 F.3d 333, 341 (4th Cir.

2005) (emphasis added) (citations and quotation marks omitted). In that vein, the

North Carolina Business Court has held that the common interest doctrine applies to

“communications between separate groups of counsel representing separate clients

having similar interests and actually cooperating in the pursuit of those interests.”

Morris v. Scenera Research, LLC, 2011 NCBC 33, 2011 WL 3808544, at *7 (N.C. Bus.

Ct. Aug. 26, 2011). The Business Court distinguishes such legal interests from

“business interest[s] that may be impacted by litigation involving one of the parties.”

SCR-Tech LLC v. Evonik Energy Serv. LLC, 2013 NCBC 42, 2013 WL 4134602, at *6

(N.C. Bus. Ct. Aug. 13, 2013) (“A party seeking to rely on the common interest



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                                     Opinion of the Court



doctrine must demonstrate that the specific communications at issue were designed

to facilitate a common legal interest; a business or commercial interest will not

suffice.”) (internal citations and quotation marks omitted); see also Bank Brussels

Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995) (“[T]he

common interest doctrine does not encompass a joint business strategy which

happens to include as one of its elements a concern about litigation.”).

       In SCR-Tech, the parties seeking protection under the common interest

doctrine were linked by ownership interests as well as a cooperation agreement. 2013

WL 4134602, at *1. SCR-Tech, the proponent of the privilege, had been previously

owned by Ebinger. Id. After selling SCR-Tech, Ebinger had come into legal conflict

with defendant Evonik over the same technology, and had executed an agreement to

support SCR-Tech in its claims against Evonik.              Id.   The Behusiness Court

distinguished between “communications between Ebinger and SCR-Tech to

coordinate positions to be taken in the separate lawsuits between them and

Defendants, and . . . communications by which Ebinger provided SCR-Tech assistance

in the present litigation pursuant to the Cooperation Agreement[,]” finding that the

former, but not the latter, was sufficient to “rise to a level of [a] shared legal interest.”

Id. at *7.

       In Nationwide Mut. Fire Ins., the agreement between the insurer and the

insured provided that the insurer would pay damages up to an amount specified in



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the policy, would provide a defense “at [the insurer’s] expense by counsel of [the

insurer’s] choice,” and could settle the claim at any time and on any terms the insurer

deemed appropriate. 172 N.C. App. at 598, 617 S.E.2d at 43. This Court held that

the insurer and the insured had a shared legal interest in defending against the

underlying claim, relying in part on a North Carolina State Bar Opinion recognizing

that an attorney may enter into dual representation of both an insurer and an

insured. Id. at 602–03, 617 S.E.2d at 45.

      Indeed, the primary purpose of an insurance contract is defense and

indemnification. By contrast, an indemnification provision in an asset purchase

agreement is generally ancillary to the sale of a business, and Defendants have

presented no evidence that their agreement with Blast was otherwise.                 The

agreement and resulting arrangement is almost identical in nature to the cooperation

agreement in SCR-Tech. While Defendants attempt to analogize to the insured-

insurer agreements recognized in Nationwide Mut. Fire Ins., the analogy is

unpersuasive.    The indemnification provision in the asset purchase agreement

requires Blast to defend and indemnify Defendants from “[l]osses incurred or

sustained . . . on account of or relating to . . . the use of the [a]ssets by [p]urchaser

and the operation of the . . . [h]ealth [c]lubs . . . .” This language, and the nature of

the asset purchase agreement, are most similar to the purchase agreement which was

held to be insufficient in SCR-Tech to create a tripartite privileged relationship.



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SCR-Tech, 2013 WL 4134602, at *7. Blast is not a party to this litigation. Nor does

Blast have any contractual authority to settle or otherwise affect the outcome of the

suit against Defendants, unlike the insurer in Nationwide Mut. Fire Ins., 172 N.C.

App. at 598, 617 S.E.2d at 43.

       Neither this Court nor the North Carolina Supreme Court has extended the

common interest doctrine to relationships formed primarily for purposes other than

indemnification or coordination in anticipated litigation. Cf. Raymond, 365 N.C. at

99, 721 S.E.2d at 924 (law enforcement officer communicated with counsel provided

by professional association, of which he was a member, seeking legal advice regarding

a specific employment dispute that resulted in litigation); Nationwide Mut. Fire Ins.,

172 N.C. App. at 598, 617 S.E.2d at 43 (insurer provided counsel to represent insured

in litigation and maintained the right to settle the case); SCR-Tech, 2013 WL

4134602, at *1 (parties each involved in separate lawsuits against defendant).

Further, we are aware of no precedent indicating that federal courts within the

Fourth Circuit have extended the common interest doctrine to a case “where the

sharing was not done by agreement relating to some shared actual or imminent,

specific litigation.”   United States v. Duke Energy Corp., 214 F.R.D. 383, 388

(M.D.N.C. 2003); see also In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir.

1990) (parent company and its subsidiary had agreement to jointly prosecute contract

claims against U.S. Army). Decisions from other circuits suggest this limitation as



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well. Schwimmer, 892 F.2d at 243; see also McPartlin, 595 F.2d at 1337 (“The

privilege protects pooling of information for any defense purpose common to the

participating defendants.”). Blast’s status as a non-party and the absence of evidence

that this litigation was material to its asset purchase agreement with Defendants

distinguishes this case from decisions relied upon by Defendants for protection

through the common interest doctrine.

      We hold that Defendants and Blast shared a common business interest as

opposed to the common legal interest necessary to support a tripartite attorney-client

relationship. Consequently, we hold that the trial court did not abuse its discretion

in compelling Defendants to produce the documents.

      AFFIRMED.

      Judges STEPHENS and HUNTER, JR. concur.




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