The LANE CONSTRUCTION CORPORATION, Plaintiff, v. SKANSKA USA CIVIL SOUTHEAST, INC. and Skanska Infrastructure Development, Inc., Defendants Case No: 6:21-cv-164-RBD-DCI United States District Court, M.D. Florida, Orlando Division Signed November 07, 2022 Counsel Michael S. McNamara, Pro Hac Vice, Brendan J. Hennessey, Pro Hac Vice, Gerald Zingone, Pro Hac Vice, Jeffrey R. Gans, Pro Hac Vice, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, Denis L. Durkin, Baker & Hostetler, LLP, Orlando, FL, Shani Rivaux, Jennifer G. Altman, Pillsbury Winthrop Shaw Pittman LLP, Miami, FL, for Plaintiff. Bruce D. Meller, Pro Hac Vice, Peckar & Abramson, P.C., River Edge, NJ, Charles Emmanuel Fombrun, Gary M. Stein, Kesang Stefan Chin, Jerry P. Brodsky, Peckar & Abramson, Miami, FL, Michael Holland Shanlever, Atlanta, GA, Nick R. Hoogstraten, Pro Hac Vice, Peckar & Abramson, P.C., Washington, DC, Warren Friedman, Friedman Sklar PLLC, Boca Raton, FL, for Defendant, Skanska USA Civil Southeast, Inc. Warren Friedman, Friedman Sklar PLLC, Boca Raton, FL, Michael Holland Shanlever, Atlanta, GA, for Defendant, Skanska Infrastructure Development, Inc. Irick, Daniel C., United States Magistrate Judge ORDER *1 This cause comes before the Court for consideration on the following motion: MOTION: Motion for Protective Order (Doc. 272) FILED: August 29, 2022 THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part. I. Background Plaintiff sought to compel Defendant Skanska USA Civil Southeast, Inc. and Defendant Granite Construction Co. (Defendants) to produce various documents withheld as privileged pursuant to the common interest doctrine. Doc. 241. On August 19, 2022, the Court held a hearing on that motion. As discussed at the hearing, the Court denied that motion as moot to allow the parties to submit supplemental briefing; the Court required Defendants to file a motion for protective order asserting the privilege. Doc. 253. In accordance with the Court's prior Order, Defendants filed a motion for protective order. Doc. 272 (the Motion). Plaintiff responded to the Motion. Doc. 289. On September 7, 2022, the Court also held a hearing on many then-pending discovery motions, including the Motion. Doc. 291. After due consideration, the Motion is due to be granted in part and denied in part as set forth herein. II. Discussion a. The Common Interest Doctrine The common interest doctrine is not an independent source of privilege, but rather acts as an exception to the general rule that “a voluntary disclosure of privileged material to a third party waives the attorney-client privilege.” U.S. v. Patel, 509 F. Supp. 3d 1334, 1340 (S.D. Fla. Dec. 23, 2020) (citing Visual Scene, Inc. v. Pilkington Bros., PLC, 508 So. 2d 437, 440 (Fla. 3d. DCA 1987). “Under the ‘common interest’ exception to waiver, a party may share its work product with another party without waiving the right to assert the privilege when the parties have a shared interest in actual or potential litigation against a common adversary, and the nature of their common interest is legal, and not solely commercial.” Spencer v. Taco Bell, Corp., 2013 WL 12156093, at *5–6 (M.D. Fla. Apr. 23, 2013) (citing Mitsui Sumitomo Ins. Co. v. Carbel, 2011 WL 2682958, at *4 (S.D. Fla. July 11, 2011)). The party asserting that communications fall within the common interest doctrine must show that “(1) there was a common legal interest among them, (2) the parties are represented by separate lawyers and, (3) the parties (with their lawyers) agreed to exchange information concerning the matter of common interest.” Patel, 509 F. Supp. 3d at 1340 (citing In re Teleglobe Comm. Corp., 493 F.3d 345, 366 (3d Cir. 2007)). Regarding the first element, the common legal interest among the parties must be “substantially similar.” Id. (citations omitted). Defendants assert that the common interest doctrine applies to three general categories of documents (together, the Withheld Documents): 1) documents that involve Plaintiff's alleged failure to make timely working capital contributions; 2) documents that involve Plaintiff's alleged insistence on reporting false financial information; and 3) documents which involve Plaintiff's alleged interference with Supplemental Agreement 22. Doc. 272 at 3–5. *2 As an initial matter, there appears to be no dispute that the Withheld Documents fall within the scope of the attorney-client privilege, and, having reviewed the privilege logs supplied, the Court finds that the Withheld Documents fall within the scope of the attorney-client privilege. See In re Photochromic Lens Antitrust Litigation, 2013 WL 12316874, at *2 (M.D. Fla. June 11, 2013) (“It is axiomatic that the common interest doctrine presumes a valid underlying privilege.”) (citation omitted). As to the three elements of the common interest doctrine, there is no dispute that the second element is met; Defendants were represented by separate lawyers. The parties dispute the first and third element. As to the first element, the Court finds that Defendants shared common legal interests in all three document categories. Specifically, Defendants shared common legal interests in the potential fallout (e.g., default) that may have resulted from Plaintiff's alleged wrongdoing.[1] While these interests also had a commercial component, the Court finds that these interests were also “legal, and not solely commercial.” Spencer, 2013 WL 12156093, at *5–6 (emphasis added). And as Plaintiff and Defendants were part of the same joint venture, Defendants’ common legal interests were “substantially similar.” Patel, 509 F. Supp. 3d at 1340 (citation omitted). For instance, as members of the same joint venture Defendants would suffer similar harm by Plaintiff's potential default within the joint venture. Accordingly, the Court finds that the first element is met. As to the third element, the Court finds that “the parties (with their lawyers) agreed to exchange information concerning the matter of common interest.” Id. (citation omitted). Prior to early 2021 (around the time this case was filed), Defendants did not execute a written joint defense agreement. Doc. 289-2 at 2. However, the common interest doctrine may still apply when there is no written agreement. See Patel, 509 F. Supp. 3d at 1340 (“A written executed agreement is not required to establish that a common interest privilege existed.”) (citing Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 300 F.R.D. 590, 596 (S.D. Fla. June 13, 2014)). For instance, one “Florida appellate court based its finding that two parties shared a common interest on an ‘affidavit attesting to a before-the-exchange agreement stating their intention to maintain confidentiality and to use the information only in preparation for trial on those issues common to both.’ ” Heffernan, 300 F.R.D. at 597 (quoting Visual Scene, 508 So. 2d at 441)). Here, Defendants have presented two sworn attorney affidavits which support the existence of an oral joint defense agreement.[2] See Docs. 271-1 ¶ 4; 272-2 ¶ 6. The agreement appears to have been entered into sometime in 2018, but in neither affidavit do the attorneys specify the exact date the oral agreement was entered into. In an exhibit to the prior motion to compel (which was denied as moot), Defendant Granite's counsel references a common interest agreement entered into on August 29, 2018. Doc. 241-6 at 3. So, based on the record before the Court, August 29, 2018 is the earliest date the common interest agreement could have been entered into. Most of the Withheld Documents are dated from late 2019 onwards, by which time a common interest agreement was certainly entered into. See Doc. 272-1 ¶ 4. However, some of the Withheld Documents are dated July 2018. See Doc. 272-3 at 3. There is simply no basis for the Court to find that a common interest agreement covered the Withheld Documents dated July 2018. *3 Accordingly, for the foregoing reasons, the Court finds that the common interest doctrine applies to all the Withheld Documents, except those Withheld Documents which are dated July 2018. See Doc. 272-3 at 3. b. The At-Issue Doctrine Though the Court finds that Defendants meet the common interest doctrine standard here, that does not end the analysis. As Plaintiff accurately notes, Defendant Skanska has asserted advice of counsel as an affirmative defense. Doc. 57 at 20. Defendants did not address the impact of this affirmative defense in the Motion, and Defendants did not seek leave to file a reply to address the issue. So, Plaintiff's argument is undisputed. By asserting advice of counsel as an affirmative defense, a party does not waive all privilege in the case, but a party does waive privilege over documents which are necessarily required to prove the defense. See Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 508 (Fla. 2d. DCA 2006) (“[W]aiver occurs when a party “raises a claim that will necessarily require proof by way of a privileged communication.”) (emphasis original).[3] While the common interest doctrine is an exception to the general rule that “a voluntary disclosure of privileged material to a third party waives the attorney-client privilege,” Patel, 509 F. Supp. 3d at 1340, Defendants cite no authority supporting the proposition that the common interest exception also applies when a party waives privilege by putting privileged communications at issue. Especially in the absence of authority stating otherwise, the Court is not inclined to find that the common interest doctrine applies when a party waives privilege by putting privileged communications at issue. As a general matter, Plaintiff's claims in this case revolve around Defendant Skanska's decision to not seek termination of the joint venture and to instead negotiate and enter Supplemental Agreement 22. In other words, Supplemental Agreement 22 is at the heart of Plaintiff's allegations against Defendant Skanska. Against these allegations, Defendant Skanska stated: Skanska SE asserts that Lane's claims are barred, in whole or in part, to the extent that Skanska SE consulted with counsel and considered the advice of its legal counsel when it voted for decisions which Lane alleges were improper. Specifically, Skanska SE reasonably relied upon the advice of SGL's counsel, as well as its own independent counsel. Doc. 57 at 20 (emphasis added). Through that affirmative defense, Defendant Skanska has put documents (including otherwise privileged documents) related to its decisions concerning Supplemental Agreement 22 at issue. See Doc. 272-3 at 3–7; see also Doc. 241-8 at 18. *4 Thus, Defendant Skanska has waived the attorney-client privilege as to the Withheld Documents related to Supplemental Agreement 22 because Defendant Skanska “must necessarily present evidence of these communications at trial to prove [its] claims.”[4] Coates, 940 So. 2d at 508. However, the first two categories of documents (untimely working capital contributions and insisting on reporting false financial information) are sufficiently distinct from Defendant Skanska's advice of counsel defense, so the Court finds that Defendant Skanska need not present evidence of these communications to prove its advice of counsel defense. See id. Therefore, the first two categories of documents will remain privileged.[5] III. Conclusion For the foregoing reasons, it is hereby ORDERED that the Motion (Doc. 272) is: 1) GRANTED in part such that: a. On or before November 14, 2022, Defendants must give Plaintiff the Withheld Documents related to Supplemental Agreement 22 (see Doc. 272-3 at 3–7; see also Doc. 241-8 at 18); b. On or before November 14, 2022, Defendants must give Plaintiff the Withheld Documents dated July 2018 (see Doc. 272-3 at 3); and c. No further discovery will be permitted regarding the remainder of the Withheld Documents; and 2) The Motion (Doc. 272) is DENIED in all other respects.[6] ORDERED in Orlando, Florida on November 7, 2022. Footnotes [1] It appears that Defendants’ common legal interests were not litigated prior to Plaintiff filing this lawsuit. The Court finds this fact is of little consequence here; the common legal interest doctrine applies to “litigated or nonlitigated matter[s], including prospective litigation.” Ameritox, Ltd. v. Millennium Labs., Inc., 2013 WL 12159054, at *3 (M.D. Fla. Nov. 4, 2013) (citing Restatement (Third) of the Law Governing Lawyers § 76). Further, the Court does not find the 2- to 3-year gap between the creation of the documents and the filing of this litigation precludes the applicability of the common interest doctrine. Cf. Spencer, 2013 WL 12156093, at *2 (“The two documents were created in 2007, a time at which no one held a patent and legal action was not threatened. And, it was not until six years later that the claims for infringement actually were brought.”) (emphasis added). [2] As discussed at the September 7, 2022 hearing, the deposition transcript cited by Plaintiff (Doc. 289-2) is not inconsistent with an oral common interest agreement predating this litigation. [3] The parties did not address whether federal or state law governs the at-issue doctrine, “though the analysis differs somewhat under each standard.” Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 300 F.R.D. 590, 593 (S.D. Fla. June 13, 2014). Because this is a diversity action the Court applies Florida state law, see id. (“This is a federal diversity action. As such, state law, and specifically Florida state law, governs attorney-client privilege issues[.]”), which generally “disfavors waiver of the attorney-client privilege.” Id. (citations omitted). [4] Again, Defendants did not address the impact of the at-issue doctrine in the Motion, and Defendants did not request leave to file a reply concerning this issue, so the Court finds that Plaintiff's argument concerning the at-issue doctrine is unopposed. [5] Plaintiff did raise a selective disclosure waiver argument, but Defendants subsequently clawed back the document that gave rise to this argument. At the September 7, 2022 hearing the Court also ordered that the document (which was attached to Plaintiff's response) be sealed. See Doc. 291 at 2. Accordingly, the Court finds that this argument is moot. [6] None of the parties requested attorney fees and the Court otherwise finds that attorney fees are not necessary here; the parties’ respective positions were substantially justified. Fed. R. Civ. P. 37(a)(5).