          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
           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).



                                     - 2 -
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.


                                               - 3 -
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 attorney-

client 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


                                      - 4 -
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.


                                      - 5 -
             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 work-

product).     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-


                                   - 6 -
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


                                       - 7 -
work-product protection.        But see In re Grand Jury Subpoena, 274

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

product    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


                                   - 8 -
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.




                                - 9 -
