MICHAEL NOEL, KATHLEEN WIKSTEN, and CLAIRE LADOUCEUR, Plaintiffs, v. MHC HERITAGE PLANTATION, LLC, et al., Defendants CASE NO. 21-14492-CIV-MIDDLEBROOKS/MAYNARD United States District Court, S.D. Florida Entered on FLSD Docket October 19, 2022 Maynard, Shaniek M., United States Magistrate Judge ORDER *1 THIS CAUSE is before me upon Defendants’ Motion in Limine to Admit Evidence And Deny Plaintiffs’ Improper Claw Back Demand (“Motion”). DE 116, DE 124.[1] Presiding U.S. District Judge Donald M. Middlebrooks has referred this Motion to me for appropriate disposition. DE 119. Plaintiffs have filed a response in opposition and Cross-Motion to Strike Motion and to Compel Return of Inadvertently Produced Documents (“Cross-Motion”). DE 118. All parties have filed respective replies. DE 120, DE 121. I held a hearing on October 12, 2022. DE 131. Having reviewed the record, having heard from counsel, and being otherwise fully advised, Defendants’ Motion is DENIED and Plaintiffs’ Cross-Motion is GRANTED for the following reasons. BACKGROUND On December 21, 2021, the three named Plaintiffs filed a Class Action Complaint alleging that Defendants failed to provide Plaintiffs and other similar situated mobile homeowners residing at Heritage Plantation mobile home park with essential services, including paved streets, sewer lines, and, when it rains, an adequate storm drainage system. DE 1. Plaintiffs allege that this failure has led them to sustain personal injuries and property damage, and they assert claims for breach of contract, breach of the covenant of quiet enjoyment, negligence, private nuisance, and trespass. Id. On May 6, 2022, Plaintiffs amended their complaint and added three new Defendants to this action. DE 49. Defendants have all filed answers with general denials and affirmative defenses. DE 61, DE 84. Fact discovery is now closed. Expert discovery is ongoing and is expected to be completed by October 31, 2022. DE 97. Plaintiffs have filed a revised motion for class certification, which remains pending. DE 50. This case is presently set for trial during the two-week trial period beginning January 3, 2023. DE 97. DISCUSSION The parties’ present dispute centers on an email chain inadvertently produced by Plaintiffs in discovery. The email chain is on a single page identified with the Bates Stamp Wiksten003272 (“Email 3272”).[2] DE 124-4. Email 3272 contains a subject line of “Strategy” and is comprised of a chain of two emails. Both emails are dated December 15, 2021, which was less than a week before this case was filed on December 21, 2021. The first email is from Plaintiff Michael Noel and discusses a conversation he had with “Beth.” All parties agree that “Beth” refers to Plaintiffs’ counsel of record, Elizabeth Fegan. The second email is a response from Plaintiff Kathleen Wiksten to Plaintiff Noel. Plaintiff Wiksten's email references a separate conversation she had with Beth. Plaintiff Wiksten's response email includes a courtesy copy to Plaintiff Claire Ladouceur and a blind copy to non-party Ann Keenan. At the time the email was sent, Ann Keenan owned a home and resided at the mobile home park. Though Ms. Keenan is not a named Plaintiff, she is a putative class member and Plaintiff Wiksten's friend. *2 Upon being alerted to the fact that Defendants intended to use Email 3272 in connection with the pending motion for class certification, Plaintiffs’ counsel asserted both attorney/client privilege and work product protection over the email. Plaintiffs thus seek to “claw back” the inadvertently produced email on grounds that it is privileged from disclosure. In addition to the asserted privileges, in response to the argument that the inclusion of non-party Ann Keenan waives any privilege, Plaintiffs rely on the common interest exception to waiver under Florida law. Defendants disagree that Email 3272 is privileged from disclosure. Defendants assert further that Plaintiffs have affirmatively waived any applicable privilege under various waiver doctrines. Defendants seek to use Email 3272 in opposition to class certification and ask the Court to deny any attempt by Plaintiffs to claw back this email. Although the parties’ briefing is extensive, their dispute boils down to two key questions. First, is Email 3272 protected from disclosure under the attorney-client privilege and work product protection doctrines? Second, if the email is protected from disclosure, have Plaintiffs waived any such privilege or protection? Upon careful consideration, I answer yes to the first question and no to the second. I will first address the issue of privilege before turning to the issue of waiver. I. Email 3272 is Protected From Disclosure Upon review of Email 3272, I am satisfied that Plaintiffs have met their burden to demonstrate that this email is protected from disclosure. The attorney-client privilege, the oldest of the common-law privileges, “exists to protect confidential communications ... made for the purpose of securing legal advice.” Upjohn Co. v. U.S., 449 U.S. 383, 389 (1981); In re Grand Jury Proc. 88-9 (MIA), 899 F.2d 1039, 1042 (11th Cir. 1990). The ultimate touchstone for the privilege to apply is whether the communication reveals advice from an attorney. If one of the primary purposes of the communication is to convey legal advice, then the attorney-client privilege generally attaches. See Upjohn Co., 449 U.S. at 389. In this diversity action, Florida law guides application of the attorney-client privilege. Fed. R. Evid. 501; Townhouse Rest. of Oviedo, Inc. v. NuCO2, LLC, No. 19-14085-Civ-Rosenberg/Maynard, 2020 WL 4923732, at *5 (S.D. Fla. June 24, 2020). Attorney-client privilege is codified in Florida Statutes § 90.502, under which “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” Fla. Stat. § 90.502(2). To determine if an attorney-client relationship exists in the absence of a formal retainer and after a putative client has consulted with an attorney, Florida courts use a subjective test that hinges upon the client's reasonable belief that she is consulting an attorney in that capacity and her manifested intention is to seek professional legal advice. Jackson v. BellSouth Telecommn's, 372 F.3d 1250, 1281 (11th Cir. 2004) (citing Bartholomew v. Bartholomew, 611 So.2d 85, 86 (Fla. 2d DCA 1992)). If established, the privilege is often deemed waived if the holder of the privilege voluntarily discloses privileged information to third parties. Savino v. Luciano, 92 So.2d 817, 819 (Fla. 1957) (discussing waiver of privileges generally); Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437, 440 (Fla. 3d DCA 1987); see also U.S. v. Suarez, 820 F.2d 1158, 1160 (11th Cir.1987). Florida law recognizes the common interest doctrine as an exception to the doctrine of waiver of privilege. See Fla. Stat. § 90.502(4)(e); Visual Scene, 508 So.2d at 440. *3 Here, Email 3272 is an email chain among three named Plaintiffs and a potential class member. The email exchange reveals legal advice and strategy from an attorney. That the email is solely between non-attorneys does not eviscerate the privilege. To find otherwise “would result in a somewhat absurd finding that a document generated for purposes of obtaining and/or assisting in the transmission of legal advice would [lose its privilege] merely because the author and recipient were not attorneys.” See In re Denture Cream Prod. Liab. Litig., 2012 WL 5057844, at *13 (S.D. Fla. Oct. 18, 2012). Additionally, the fact that one named Plaintiff chose to blind copy a non-party does not constitute a waiver of the privilege in this scenario. The common interest exception to waiver exists so that “clients and their respective attorneys sharing common litigation interests may exchange information freely among themselves without fear that by their exchange they will forfeit the protection of the privilege.” Visual Scene, 508 So.2d at 440. The common interest exception to waiver applies if (1) the original disclosure was necessary to obtain informed legal advice and might not have been made absent the attorney-client privilege; (2) the communication was such that disclosure to third parties was not intended, and (3) the information was exchanged between the parties for the limited purpose of assisting in their common cause. Infinite Energy, 2008 WL 2856719 (N.D.Fla. July 23, 2008) (citing Developers Sur. & Indem. Co. v. Harding Vill., Ltd., 2007 WL 2021939 (S.D. Fla. July 11, 2007)). Florida courts have found that the most important question is whether the information was exchanged for the limited purpose of assisting in the parties’ common, litigation-related cause. Id. Here, non-party Ann Keenan is a potential class member who has filed a sworn declaration attesting to the fact that she believed that Plaintiffs’ counsel, the law firm of Fegan Scott LLC, represented her interests in the soon-to-be-filed lawsuit when she received Email 3272. DE 118-2. Ms. Keenan had previously completed a confidential questionnaire for submission to the law firm as a member of the putative class. DE 121-3. I note that this questionnaire expressly cautioned that its completion “does not mean that Fegan Scott LLC, is personally representing you.” I don't find this dispositive, however. The questionnaire is only one of several key factors to consider. See generally, Gats v. Rohm & Haas Co., 2006 WL 3420591, at *3, *5 (E.D. Pa. Nov. 22, 2006) (noting that the issue of whether putative class members are clients for determining if a communication is privileged is “very fact-and-circumstances-specific” and concluding that “an attorney-client relationship was formed when individuals ... chose to complete and submit the questionnaires” to plaintiff's counsel in a putative class action setting). As the owner of a home in the mobile home park with knowledge of a potential lawsuit likely to be filed on behalf of a class of homeowners living in that mobile home park, it makes sense that Ms. Keenan had an interest in the lawsuit and had a reasonable subjective belief that she was being represented by “Beth” and her law firm at the time she received Email 3272. Upon review of Email 3272, I further find that its principal purpose was to exchange information to assist in a common, litigation-related cause—that is, to convey and communicate legal advice concerning class certification issues the week before this lawsuit was filed. I thus find Email 3272 to fall within the ambit of attorney-client privilege. *4 Plaintiffs also claim that Email 3272 is protected work product. I agree. Federal law governs the work product privilege. See Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 699–700 (S.D. Fla. 2007); see also Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 702 n.10 (10th Cir. 1998) (“[u]nlike the attorney client privilege, the work product privilege is governed, even in diversity cases, by a uniform federal standard embodied in Fed. R. Civ. P. 26(b)(3)”). In pertinent part, Federal Rule of Civil Procedure 26(b)(3) states: (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). Fed. R. Civ. P. 26(b)(3)(A). “The work product doctrine protects from disclosure documents and tangible things prepared in anticipation of litigation by or for a party or by or for that party's attorney acting for his client.” Atriums of Palm Beach Condo. Assn., Inc. v. QBE Ins., Co., 2009 WL 10667478, at *3 (S.D. Fla. June 17, 2009). As the party asserting the work product privilege, Plaintiffs bear the burden of establishing it by a preponderance of the evidence. MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 584 (S.D. Fla. 2013). For the privilege to apply, Plaintiffs must prove that they anticipated litigation at the time Email 3272 was created. Holladay v. Royal Caribbean Cruises, Ltd., 333 F.R.D. 588, 592 (S.D. Fla. 2019). To determine if a document was made in anticipation of litigation “the primary focus is the reason or purpose for creating the document.” Place St. Michel, Inc. v. Travelers Prop. Cas. Co. of Am., 2007 WL 1059561, at *2 (S.D. Fla. Apr. 4, 2007). To sustain a work product claim, the proponent of the privilege must prove that the document was “prepared with the primary motivating purpose of aiding in possible litigation.” Wyndham Vacation Ownership, Inc. v. Reed Hein & Assocs., LLC, 2019 WL 9091666, at *15 (M.D. Fla. Dec. 9, 2019) Unlike the attorney-client privilege, it is not necessary that work product be intended to remain confidential, so disclosure to a third party does not necessarily destroy the privilege. “[T]he purpose of the work product rule is not to protect the evidence from disclosure to the outside world but rather to protect it only from the knowledge of opposing counsel and his client, thereby preventing its use against the lawyer gathering the materials.” Wright & Miller, Fed. Prac. & Proc. Civ. § 2024 (3d ed. 2019). Email 3272 falls with in the scope of “documents and tangible things” so the next inquiry is whether this email was “prepared with the primary motivating purpose of aiding in possible litigation.” Wyndham, 2019 WL 9091666, at *15 (emphasis added). It is not enough that the email “may also be helpful in the event of litigation” or was prepared “with an eye toward litigation.” Id. at *14–15. After considering Plaintiffs’ arguments and having reviewed Email 3272 in light of the above standards, I find that Plaintiffs have satisfactorily shown that the email was made with the primary motivating purpose of aiding in litigation or in anticipation of litigation. Plaintiff Noel sent Email 3272 to his two co-Plaintiffs to discuss strategy on how to approach the issues of class certification and potential class members. At its outset, the email refers to a “conversation” Plaintiff Noel had with his attorney and recounts his attorney's thoughts about how best to proceed. I find it notable that Email 3272 was sent the week before this lawsuit was filed. Its subject line is “Strategy” and, true to this title, Plaintiff Noel communicates a proposed strategy on class certification to his co-Plaintiffs. In response, Plaintiff Wiksten communicates what she thinks the strategy should be and she again refers to what their attorney has communicated to them about potential avenues to take relating to the proposed class action. It is understandable that litigants whose case is on the verge of being filed would discuss their litigation goals and strategies amongst each other following a conversation with their attorney to invite possible insight or continued communication that might aid in the soon-to-be-filed litigation. Thus, I find that Email 3272 was created with the primary motivating purpose of aiding Plaintiffs in their upcoming litigation with Defendants and qualifies as protected work product. II. Waiver *5 My above finding that Email 3272 is attorney-client and work product privileged does not end the inquiry. I must next determine if Plaintiffs have waived privilege with respect to this email communication. The parties’ arguments in this regard focus principally on implied waiver. Their disagreement centers on whether or not Plaintiffs have waived any privilege attached to Email 3272 by raising certain issues in support of their pending request for class certification that in fairness requires an examination of the otherwise protected email. Waivers of attorney-client privilege and work product protection are viewed slightly differently under established law. I will address the general law of waiver in both settings below before applying the law to Plaintiffs’ actions in connection with Email 3272. While Florida law recognizes that a client may waive the attorney-client privilege either expressly or by implication, waiver of the attorney-client privilege is disfavored. Fla. Stat. § 90.507; Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 508 (Fla. 2d DCA 2006). The confidentiality of attorney-client privileged communications is considered to be “one of the most sacrosanct principles of the law,” Reuter v. Physicians Cas. Risk Retention Grp., 2017 WL 395242, at *4 (S.D. Fla. Jan. 27, 2017), and is “traditionally deemed worthy of maximum legal protection.” Maharaj v. GEICO Cas. Co., 289 F.R.D. 666, 669 (S.D. Fla. 2013). Florida courts have found an “at-issue” waiver if “a party ‘raises a claim that will necessarily require proof by way of a privileged communication.’ ” Coates, 940 So. 2d at 508 (quoting Jenney v. Airdata Wiman, Inc., 846 So. 2d 664, 668 (Fla. 2d 2003)). Florida courts also recognize a “sword and shield” (or “selective disclosure”) waiver, which results “[w]hen attorney-client communications are disclosed regarding a certain matter.” Coates, 940 So. 2d at 511. Under such circumstances, “a party may not insist upon the protection of the privilege for damaging communications while disclosing other selected communications because they are self-serving.” Id. Instead, the party is deemed to impliedly waive the privilege “with respect to communications on that same, specific matter.” Id. Importantly, a party does not waive the attorney-client privilege merely because documents protected by the privilege “are relevant to or may assist the [opposing] lawyers in their defense.” Id. at 509; see also Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011) (unlike the work-product doctrine, there is no “need” or “undue hardship” exception to attorney-client privilege). Ultimately, whether there has been an implied waiver of the attorney-client privilege and, if so, the scope of any such waiver are factual issues for which the party claiming the waiver bears the burden of proof. McPartland v. GEICO Gen. Ins. Co., 2010 WL 11507535, at *6 (M.D. Fla. Mar. 5, 2010) (citing First Union Nat. Bank v. Turney, 824 So. 2d 172, 183 n.9 (Fla. 1st DCA 2001) (“Just as the proponent of the privilege has the burden of proof as to facts which give rise to the privilege, the party seeking to abrogate the privilege has the burden to prove facts which would make an exception to the privilege applicable.”)). Turning next to waiver in the context of protected work product, federal courts have found an implied waiver of the work product doctrine “when (1) assertion of the protection results from some affirmative act by the party invoking the protection; (2) through this affirmative act, the asserting party puts the protected information at issue by making it relevant to the case; and (3) application of the protection would deny the opposing party access to information vital to its defense.” Stern v. O'Quinn, 253 F.R.D. 663, 676 (S.D. Fla. 2008); see also Oppenheim, 2017 WL 8314668, at *3 (“Federal law recognizes that an at-issue waiver of work-product protection may occur when a party asserts a claim or defense that relies on work-product protected materials.”); Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 300 F.R.D. 590, 594-95 (S.D. Fla. 2014) (“Under the federal standard, [f]airness may compel a finding of an implied waiver [of the work-product doctrine] when a party asserts a claim or defense that requires examination of protected communications.”). *6 The Eleventh Circuit has held, however, “that the at-issue waiver doctrine ‘does not extend to materials protected by the opinion work product privilege.’ ” Oppenheim, 2017 WL 8314668, at *3 (quoting Cox, 17 F.3d at 1422). A number of lower courts have found an exception to this limitation where the opinion work product in question “is directly at issue, particularly if the lawyer or law firm is a party to the litigation.” Monitronics Int'l, Inc. v. Hall, Booth, Smith, P.C., 2017 WL 218397, at *2 & n.3 (S.D. Fla. Jan. 18, 2017). Defendants argue that Plaintiffs expressly waived any privilege by disclosing the email in the first place. I am not persuaded. The email was one of thousands of other emails produced by Plaintiffs in discovery and I find that Plaintiffs took reasonable steps to claw back the email upon learning that it had been inadvertently disclosed. Defendants argue also that Plaintiffs impliedly waived any privilege because Email 3272 runs contrary to Plaintiffs’ arguments made in support of their pending request to be appointed as class representatives and for their law firm to be appointed as class counsel. Defendants contend that Plaintiffs’ have thus placed issues related directly to the contents of Email 3272 squarely at issue such that any privilege has been impliedly waived. I disagree. Defendants attempt to paint Email 3272 out to be a smoking gun document that must be introduced into evidence as a matter of fairness on the issue of class certification. As Plaintiffs point out, however, Defendants have not addressed the argument that Email 3272 contains protected attorney opinion work product which generally “enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir.), opinion modified on reh'g, 30 F.3d 1347 (11th Cir. 1994). In addition, Plaintiffs have persuasively argued that Defendants have demonstrated ample ability to oppose class certification on grounds that Plaintiffs and their counsel are not suitable class representatives without the need for Email 3272. The existing briefing on class certification is extensive and Defendants have recently requested an evidentiary hearing on class certification to occur after expert disclosures, arguing principally that such a hearing is merited to address competing expert opinions. DE 112. While Defendants also refer to alleged “disqualifying conflicts” in opposition to class certification, Defendants firmly maintain that they have outlined this argument in their opposition papers which reportedly includes arguments about “status (e.g., homeowners vs. lessees; HPAC vs. non-HPAC; HPAC vs. HOA), attribution of damages (e.g., zero-sum diminution in value; multiple tenants; home owner vs. renter), challenge to the in-place ‘LTA’ with favorable rent-escalation caps, and the scope of court-ordered injunctive relief that might result in improvements or repairs the cost of which would be passed on to the home owners pro rata.” Id. at 5. In sum, contrary to Defendants’ contentions and based on the record presently before me, I do not find that Plaintiffs have either expressly or impliedly waived the attorney-client privilege or work-product protection afforded to Email 3272. In Florida, “a party who bases a claim on matters which would be privileged, the proof of which will necessitate the introduction of privileged matter into evidence, and then attempts to raise the privilege so as to thwart discovery, may be deemed to have waived that privilege.” GAB Bus. Servs., Inc. v. Syndicate, 627, 809 F.2d 755, 762 (11th Cir. 1987) (emphasis added); Coates, 940 So. 2d at 508 (noting that party impliedly waives attorney-client privilege when it “has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence”). Here, there is no sign that Plaintiffs have injected into this litigation any claims or defenses that necessitate proof by way of the privileged email. Its privileged status thus remains fully intact. CONCLUSION *7 Based on the foregoing, it is hereby ORDERED that Defendants’ Motion In Limine to Admit Evidence and Deny Plaintiffs’ Improper Claw Back Demand [DE 116 (redacted version); DE 124 (unredacted version)] is DENIED insofar as I find that Email 3272 is protected from disclosures as both attorney-client privileged and attorney opinion work product. Plaintiffs’ related Cross-Motion is thus GRANTED. I decline to award any party fees in connection with this collection of motions pertaining to the privileged nature of Email 3272. DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 19th day of October, 2022. Footnotes [1] The original Motion is partially redacted. DE 116. On September 23, 2022, pursuant to Local Rule 5.4, I granted Defendants’ unopposed motion to file the fully unredacted version of the Motion under seal until either further Court order or the conclusion of this litigation. DE 123. Defendants’ complied with my Order by filing a fully unredacted version of the Motion and all its attachments under seal. DE 124. [2] This same email chain was produced twice by two separate named Plaintiffs, Ms. Ladouceur and Ms. Wiksten. The only difference between the two is that the email produced by Ms. Ladouceur (Bate-stamped “LadouceurESI001044”) does not include blind copy recipient Ann Keenan whereas the same email produced by Ms. Wiksten includes Ms. Keenan as a blind copy recipient. To avoid unnecessary confusion, I will refer to the email at issue as “Email 3272”—which reflects blind copy recipient Ms. Keenan—in this Order.