Kaiser v. Kirchick

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

GRANT KAISER and

JOHN FURNISH,

Plaintiffs,

CIVIL ACTION NO.

21-10590-MBB

v.

WILLIAM DEAN KIRCHICK, CAROL

RUDNICK KIRCHICK, Individually

and as Trustee of the 41 SEAVIEW

TERRACE REAL ESTATE TRUST,

and RONALD STEVEN RUDNICK,

Defendants.

MEMORANDUM AND ORDER RE:

DEFENDANT RONALD STEVEN RUDNICK’S MOTION FOR A PROTECTIVE ORDER

(DOCKET ENTRY # 67)

January 20, 2022

BOWLER, U.S.M.J.

Pending before this court is a motion for a protective

order filed by defendant Ronald Steven Rudnick (“Rudnick”),

pursuant to Fed. R. Civ. P. 26 (“Rule 26”) and Fed. R. Evid. 502

(“Rule 502”). (Docket Entry # 67). Plaintiffs Grant Kaiser

(“Kaiser”) and John Furnish (“Furnish”) (together, “plaintiffs”)

oppose the motion. (Docket Entry # 74). After conducting a

hearing on December 21, 2021, this court took the motion under

advisement. (Docket Entry # 84).

BACKGROUND

Plaintiffs maintain a seasonal residence in Chatham,

Massachusetts across from defendants William Dean Kirchick and

Carol Rudnick Kirchick (together, the “Kirchicks”). (Docket

Entry # 1, p. 1) (Docket Entry # 67, pp. 2-3). Rudnick, Mrs.

Kirchick’s brother, “is a licensed real estate broker and a

licensed contractor” in the area. (Docket Entry # 1, p. 5, ¶

14).

Since approximately 2017, “the [p]arties have [been]

engaged in numerous lawsuits” and other disputes with one

another. (Docket Entry # 67, p. 3). “[I]n or around August of

2017,” a dispute arose between the Kirchicks and plaintiffs

concerning two pear trees on plaintiffs’ property, which “then

devolved into another dispute regarding property and parking

rights to the so-called 30’ private way, the 20’ T section, and

ownership and rights to maintain a privet between the Kirchicks’

and [] [p]laintiffs’ property.” (Docket Entry # 67, p. 4). In

connection with this dispute, plaintiffs retained attorney Peter

Brooks (“Attorney Brooks”) to represent them, and “the Kirchicks

retained [a]ttorney Bill Henchy” (“Attorney Henchy”). (Docket

Entry # 67, p. 3). In April 2018, Kaiser emailed Rudnick a

settlement offer that “addressed both the White” litigation and

plaintiffs’ “ongoing dispute with the Kirchicks regarding

certain land rights.” (Docket Entry # 79, p. 3) (Docket Entry #

79-2).

In June 2018, “Kaiser sought [] emergency harassment

prevention order[s] [] against []Rudnick and the Kirchicks”

(together, “defendants”). (Docket Entry # 67, p. 3). In

connection with the harassment prevention orders, “[t]he

Kirchicks retained the services of [a]ttorney Bill Riley”

(“Attorney Riley”) and Rudnick retained Attorney Henchy.

(Docket Entry # 67, p. 3). A few days after Kaiser obtained the

harassment prevention orders against defendants, Attorney Brooks

wrote to Attorney Henchy, with Attorney Riley copied, proposing

a resolution to plaintiffs’ “differences” with the Kirchicks and

Rudnick. (Docket Entry # 67-1); see (Docket Entry # 67, p. 4).1

A week later, Attorney Brooks emailed Attorney Henchy: “[w]hile

we may be willing to consider separating the agreements with the

Kirchicks and Rudnick into two documents, the substance of these

1 Rudnick mischaracterizes this correspondence, repeatedly

stating that in such correspondence Attorney Brooks expressed

the need for a “‘global resolution.’” (Docket Entry # 67, pp.

2, 4) (Docket Entry # 79, p. 3) (emphasis added). As further

detailed below, Rudnick relies on this quote to argue that

defendants shared a “common interest.” (Docket Entry # 67, p.

4, 7). Upon review of the correspondence, however, this court

determined that Attorney Brooks in reality simply “present[ed] a

proposal for resolution.” (Docket Entry # 67-1). While

Attorney Brooks proposed both “a fair resolution” and “an

amicable resolution” in his correspondence from June 11, 2018,

he never proposed a “global resolution.” (Docket Entry # 67-1).

matters cannot be resolved without resolving the disputes with

both your clients.” (Docket Entry # 67-2).

In August 2018, Rudnick sued Kaiser for “contractual

interference with []Rudnick’s accepted offer for a home located

in the same subdivision as the Kirchicks and [p]laintiffs.”

(Docket Entry # 67, p. 3). That action is captioned Rudnick v.

Kaiser, et al., 1872-cv-00426 (Barnstable Superior Court) (the

“White litigation”). (Docket Entry # 67, pp. 1, 3). Rudnick

retained Attorney Henchy to represent him in the matter.

(Docket Entry # 67, p. 3).

“On February 5, 2019, [p]laintiffs’ then-attorney, Thomas

Moriarty [“Attorney Moriarty”], deposed []Rudnick in the White

litigation” with plaintiffs present. (Docket Entry # 67, p. 5)

(Docket Entry # 67-3). Attorney Moriarty “inquired about”

certain “communications between []Rudnick and the Kirchicks,” to

which Attorney Henchy, Rudnick’s “counsel at the time[,] made

multiple objections . . . and asserted attorney-client

privilege.” (Docket Entry # 67, p. 5) (Docket Entry # 67-3 at

124:4–126:8). In September 2019, “Attorney Moriarty served . .

. . subpoena[s] . . . on the Kirchicks to obtain any and all

communications between them and [] Rudnick.” (Docket Entry #

67, p. 5); see (Docket Entry ## 74-1, 74-2). In November and

December 2019, Rich May, P.C. (“Rich May”), a law firm

representing the Kirchicks,2 produced in response several hundred

pages of correspondence. (Docket Entry # 67, p. 5) (Docket

Entry # 74, pp. 4-5).

In or about October 2019, Attorney Moriarty filed a motion

in the White litigation to compel testimony by Rudnick and the

production of documents related to certain communications

between defendants. (Docket Entry # 67, p. 5) (Docket Entry #

67-4). Attorney Henchy, representing Rudnick, opposed the

motion and “argu[ed] that an attorney-client relationship

existed and that []Rudnick had not waived his privilege.”

(Docket Entry # 67, p. 5) (Docket Entry # 67-4). After a

hearing on the motion in December 2019, the court ordered

Rudnick to produce “a privilege log,” rather than “the

production of any communications.” (Docket Entry # 67, p. 5);

see (Docket Entry # 74, p. 6). Rudnick failed to timely produce

the privilege log, however, prompting plaintiffs to notify the

court and “request[] that the [c]ourt order Rudnick to (a)

produce the requested documents and (b) testify regarding the

communications.” (Docket Entry # 74, pp. 6-10). “The next day,

February 6, 2020, Rudnick (by and through Attorney Henchy) filed

a voluntary stipulation of dismissal of all claims against

2 Jeffrey Loeb (“Attorney Loeb”) from Rich May is the Kirchick’s

attorney of record for the action before this court, along with

John Donovan and Matthew Rush from Sloane & Walsh LLP. (Docket

Entry ## 9, 12, 32).

[p]laintiffs” in the White litigation. (Docket Entry # 74, p.

7). Accordingly, “the [c]ourt never issued any ruling on the

merits of [plaintiffs’] [m]otion to [co]mpel, never ruled that

the Kirchicks acted as Rudnick’s attorney relative to the White

[litigation], and never ruled that Rudnick’s communications with

the Kirchicks were entitled to any protection from disclosure.”

(Docket Entry # 74, p. 7) (Docket Entry # 74-1, p. 8, ¶ 31); see

(Docket Entry # 67, p. 5) (Docket Entry # 79, p. 5).

The action before this court, initiated in April 2021,

arises from the dispute concerning the two pear trees on

plaintiffs’ property “that interfered with the Kirchicks’ view.”

(Docket Entry # 1, pp. 1-2, ¶¶ 1-2).3 The parties do not dispute

that plaintiffs have produced copies of correspondence between

Rudnick and the Kirchicks that were previously produced in the

White litigation. See generally (Docket Entry ## 67, 74, 79,

80). According to Rudnick, “the majority” of the correspondence

consists of “[attorney-client] privileged communications.”

(Docket Entry # 67, p. 5).4

3 This court’s prior opinion (Docket Entry # 76) provides

additional details from the complaint that are not relevant

here.

4 In this action, Rudnick is represented by Patrick Driscoll

(“Attorney Driscoll”) from the law firm Boyle Shaughnessy Law,

P.C. (Docket Entry # 15). According to Attorney Driscoll,

Attorney Loeb denied that his firm, Rich May, disclosed the

communications at issue here. (Docket Entry # 67, p. 6).

Attorney Driscoll indicates that, contrary to Attorney Loeb’s

denial, “there is a letter from Attorney Moriarty addressed to

On November 19, 2021, plaintiffs filed four motions to

compel in this action: (1) against the Kirchicks, for the

production of “further documents in response to” plaintiffs’

production request (Docket Entry # 54); (2) against Rudnick, for

the production of “further documents in response to” plaintiffs’

production request (Docket Entry # 56); (3) against Rudnick, for

the production of documents reflected on his privilege log

(Docket Entry # 58) and (4) against the Kirchicks, for the

production of documents reflected on the Kirchicks’ privilege

log (Docket Entry # 60). Defendants filed their oppositions on

November 24 and December 3, 2021. (Docket Entry ## 66, 68, 69,

70). On December 21, 2021, this court held a hearing on

plaintiffs’ motions to compel (Docket Entry ## 54, 56, 58, 60),

as well as Rudnick’s motion for a protective order (Docket Entry

# 67) that this memorandum and order address. This court denied

plaintiffs’ motions to compel (Docket Entry ## 54, 56, 58, 60)

without prejudice and took Rudnick’s motion for a protective

order (Docket Entry # 67) under advisement. Plaintiffs filed

both an opposition (Docket Entry # 74) and sur-reply (Docket

Entry # 80) to Rudnick’s motion for a protective order (Docket

Rich May discussing the disclosure.” (Docket Entry # 67, p. 6).

A copy of such letter was not filed, however, with either

Rudnick’s motion for a protective order (Docket Entry # 67) or

reply (Docket Entry # 79).

Entry # 67) and his reply to their opposition (Docket Entry #

79).

DISCUSSION

Rudnick moves for a protective order to prevent plaintiffs

“from using privileged communications between [] Rudnick and/or”

the Kirchicks “and/or their respective counsel, that” he alleges

“were inadvertently disclosed in” the White litigation by Rich

May “without [] Rudnick’s knowledge or assent.” (Docket Entry #

67, p. 1). The protective order is necessary, Rudnick argues,

“to prevent irreparable harm to” him and because he “never

waived his privilege in regard to the inadvertently disclosed

communications.” (Docket Entry # 67, p. 1); see (Docket Entry #

79, pp. 1, 3-5). Plaintiffs deny that the “documents were

inadvertently disclosed” and that “he did not know about the

production of these documents.” (Docket Entry # 74, p. 1); see

(Docket Entry # 80, pp. 1-3). They also argue that, even if the

documents were inadvertently produced, Rudnick has waived the

privilege. (Docket Entry # 74, p. 2) (Docket Entry # 80, pp. 3-

5).

Rudnick asks that this court: “conclude that the

communications reflected in his privilege log are privileged; []

order [] [p]laintiffs to return the communications to []

[d]efendants” and “destroy all paper and electronic copies of

the communications” within five days of the order; “and,

preclude [] [p]laintiffs from using the communications in

discovery or at trial.” (Docket Entry # 67, pp. 2, 13).5

Plaintiffs, in turn, request that Rudnick’s motion for a

protective order (Docket Entry # 67) be denied and this court

“require Rudnick to pay [p]laintiffs’ reasonable expenses and

attorneys’ fees incurred in responding to [his] motion.”

(Docket Entry # 74, p. 2); see (Docket Entry # 80, p. 8).

I. Protective Orders Under Rule 26

Under Rule 26, “parties may obtain discovery regarding any

nonprivileged matter that is relevant to any party's claim or

defense and proportional to the needs of the case . . . .” Fed.

R. Civ. P. 26(b)(1). A party “from whom discovery is sought may

move for a protective order,” provided the motion “include[s] a

certification that the movant has in good faith conferred or

attempted to confer with other affected parties in an effort to

resolve the dispute without court action.” Fed. R. Civ. P.

26(c)(1). “The court may, for good cause, issue an order to

protect” such party “from annoyance, embarrassment, oppression,

5 Despite Rudnick’s request that this court issue an order

concluding “that the communications reflected in his privilege

log are privileged,” he fails to provide this court with a copy

of such privilege log with either his motion for a protective

order (Docket Entry # 67) or reply (Docket Entry # 79).

However, after a review of the docket, this court infers that

the privilege log at issue is that which he attached as Exhibit

A to his opposition to plaintiffs’ motion to compel documents

from him. (Docket Entry ## 68, 68-1).

or undue burden or expense, including . . . forbidding the

disclosure or discovery” and “forbidding inquiry into certain

matters, or limiting the scope of disclosure or discovery to

certain matters[.]” Fed. R. Civ. P. 26(c)(1).

“‘The “good cause” standard in the Rule is a flexible one

that requires an individualized balancing of the many interests

that may be present in a particular case.’” Gill v. Gulfstream

Park Racing Ass'n., Inc., 399 F.3d 391, 402 (1st Cir. 2005)

(brackets omitted) (quoting United States v. Microsoft Corp.,

165 F.3d 952, 959–60 (D.C. Cir. 1999)). However, “‘a finding of

good cause must be based on a particular factual demonstration

of potential harm, not on conclusory statements.’” United

States v. Padilla-Galarza, 990 F.3d 60, 77 (1st Cir. 2021)

(citation and brackets omitted); see Heagney v. Wong, No. CV 15-

40024-TSH, 2016 WL 2901731, at *3 (D. Mass. May 18, 2016)

(“[B]road allegations of harm, unsubstantiated by specific

examples or articulated reasons, do not satisfy the Rule 26(c)

test.” (quoting Cipollone v. Liggett Group, Inc., 785 F.2d

1108, 1121 (3d Cir. 1986))). As the party seeking a protective

order, Rudnick “‘has the burden of showing that good cause

exists for the issuance of that order.’” United States v.

Delaney, No. 09-10312-RGS, 2010 WL 2817190, at *3 (D. Mass. July

15, 2010) (quoting Pub. Citizen v. Liggett Grp., Inc., 858 F.2d

775, 789 (1st Cir. 1988)).

Rudnick has failed to meet such burden. He alleges in a

conclusory fashion that a protective order is necessary “to

prevent irreparable harm to” him and does not substantiate that

allegation “by specific examples or articulated reasons.”

(Docket Entry # 67, pp. 1, 13). See Heagney, 2016 WL 2901731,

at *3. That “broad allegation[] of harm . . . do[es] not

satisfy the Rule 26(c) test.” See id. For this reason, and for

the additional reasons that follow, this court declines to grant

Rudnick a protective order.

II. The Attorney-Client Privilege

In this diversity case, Massachusetts law determines the

scope of the attorney-client privilege. Fed. R. Evid. 501;

F.D.I.C. v. Ogden Corporation, 202 F.3d 454, 460 (1st Cir.

2000); Amica Mutual Insurance Co. v. W.C. Bradley Co., 217

F.R.D. 79, 81 (D. Mass. 2003). The privilege protects

communications made in confidence between the client and the

attorney for the purpose of obtaining legal advice. See Upjohn

Co. v. United States, 449 U.S. 383, 389 (1981); McCarthy v.

Slade Associates, Inc., 972 N.E.2d 1037, 1045-1046 (Mass. 2012).

The privilege is narrowly construed. Clair v. Clair, 982 N.E.2d

32, 40 (Mass. 2013).

The party asserting the “privilege bears the burden of

showing that the privilege applies.” Vicor Corp. v. Vigilant

Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012). This means showing

that: “(1) the communications were received from a client during

the course of the client’s search for legal advice from the

attorney in his or her capacity as such; (2) the communications

were made in confidence; and (3) the privilege as to these

communications has not been waived.” Clair, 982 N.E.2d at 41

n.28; Comm’r of Revenue v. Comcast Corp., 901 N.E.2d 1185, 1195

(Mass. 2009). Thus, in asserting the privilege, Rudnick bears

the burden of establishing these elements. See Clair, 982

N.E.2d at 41 n.28. “[W]hether an attorney-client relationship

existed” and “‘[w]hether there has been a waiver’” are “mixed

question[s] of law and fact” for the court. Patel v. Martin,

111 N.E.3d 1082, 1091 (Mass. 2018) (quoting McCarthy, 972 N.E.2d

at 1045).

While Massachusetts law governs the general scope of the

privilege, Rule 502 determines whether disclosure of privileged

material that “is made in a state proceeding and not the subject

of a state-court order concerning waiver” operates as a waiver

in subsequent proceedings. Fed. R. Evid. 502(c).6 Under Rule

502, such disclosure “does not operate as a waiver in a federal

proceeding if the disclosure: (1) would not be a waiver . . .

6 Here, the disclosure at issue occurred during the White

litigation (a state proceeding in Massachusetts) and was “not

the subject of a state-court order concerning waiver.” See Fed.

R. Evid. 502(c); see also (Docket Entry # 67, pp. 1, 3, 5)

(Docket Entry # 74, p. 7).

if it had been made in a federal proceeding” (that is, “the

disclosure [was] inadvertent,” the privilege holder “took

reasonable steps to prevent disclosure,” and “the holder

promptly took reasonable steps to rectify the error, including

(if applicable) following [Rule] 26 (b)(5)(B)”); “or (2) is not

a waiver under the law of the state where the disclosure

occurred.” Fed. R. Evid. 502(b), (c).

In Massachusetts, where the disclosure here occurred, there

are “certain exceptions to the attorney-client privilege and

some circumstances in which the privilege may be deemed waived

other than by express waiver.” See Darius v. City of Bos., 741

N.E.2d 52, 54 (Mass. 2001). For example, “[t]he attorney-client

privilege may [] be waived by the inadvertent disclosure of

privileged documents.” In re: New England Compounding Pharmacy,

Inc., No. MDL 13-2419-RWZ, 2016 WL 6883215, at *2 (D. Mass. July

28, 2016). “In considering whether an inadvertent disclosure

constitutes waiver, courts examine: ‘(1) the reasonableness of

the precautions taken to prevent inadvertent disclosure, (2) the

amount of time it took the producing party to recognize its

error, (3) the scope of the production, (4) the extent of the

inadvertent disclosure, and (5) the overriding interest of

fairness and justice.’” Santiago v. Lafferty, No. 13-CV-12172-

IT, 2015 WL 717945, at *6 (D. Mass. Feb. 19, 2015) (citation

omitted).

A. The Common Interest Doctrine

“[A]n exception to waiver of the attorney-client privilege”

is “[t]he common interest doctrine.” Hanover Ins. Co. v. Rapo &

Jepsen Ins. Services, Inc., 870 N.E.2d 1105, 1109 (Mass. 2007).

“Broadly stated, the common interest doctrine ‘extends the

attorney-client privilege to any privileged communication shared

with another represented party’s counsel in a confidential

manner for the purpose of furthering a common legal interest.’”

Id. (citation and brackets omitted) (emphasis added); see

Cavallaro v. United States, 284 F.3d 236, 250 (1st Cir. 2002)

(“The common-interest doctrine prevents clients from waiving the

attorney-client privilege when attorney-client communications

are shared with a third person who has a common legal interest

with respect to these communications, for instance, a

codefendant.”); see also Hanover, 870 N.E.2d at 1110 (“[T]he

principle . . . applies to protect privileged communications

shared by counsel for coplaintiffs.”). More specifically, the

common interest doctrine provides:

‘If two or more clients with a common interest in a

litigated or nonlitigated matter are represented by

separate lawyers and they agree to exchange information

concerning the matter, a communication of any such

client that otherwise qualifies as privileged . . . that

relates to the matter is privileged as against third

persons. Any such client may invoke the privilege,

unless it has been waived by the client who made the

communication.’

Hanover, 870 N.E.2d at 1110 (quoting The Restatement (Third) of

the Law Governing Lawyers § 76(1) (2000)). Typically, the

doctrine applies “when two or more clients consult or retain an

attorney on particular matters of common interest.” Vicor, 674

F.3d at 19.

Defendants alleging a common interest must “prove that ‘(1)

the communications were made in the course of a joint defense

effort, (2) the statements were designed to further the effort,

and (3) the privilege has not been waived.’” Hanover, 870

N.E.2d at 1113 (quoting United States v. Bay State Ambulance &

Hosp. Rental Serv., Inc., 874 F.2d 20, 28 (1st Cir. 1989)).

However, “because the [common interest] privilege is derivative

of attorney[-]client privilege, a proponent must also

demonstrate that the statement in question was made with respect

to representation and in confidence.” Woods Hole Oceanographic

Inst. v. ATS Specialized, Inc., No. CV 17-12301-NMG, 2020 WL

9741335, at *4 (D. Mass. May 11, 2020).

As to the first two elements of the common interest

doctrine, Rudnick argues that “[t]he communications by and

between []Rudnick and the Kirchicks concerning [] [p]laintiffs

were part of a joint defense effort,” as evidenced by “Attorney

Brooks’ June 11, 2018 correspondence in which he “propos[ed] a

‘global resolution’ for all the differences that existed between

the” parties. (Docket Entry # 67, pp. 4, 7) (Docket Entry # 67-

1). According to Rudnick, “[n]umerous of the emails . . .

discuss defense strategy, where [] [p]laintiffs had ongoing

disputes with []Rudnick concerning the White litigation at the

same time [] [p]laintiffs were engaging in an ongoing dispute

with the Kirchicks . . . .” (Docket Entry # 67, pp. 7-8). He

contends that his communications with “the Kirchicks as to how

to respond to []Kaiser’s repeated demands for the Kirchicks to

relinquish their requests to remove the pear trees as well as

the Kirchicks’ property rights to the 30’ private way were

clearly designed to further [] [d]efendants’ joint defense.”

(Docket Entry # 67, p. 8).

In response, plaintiffs note that Rudnick does not identify

“the common legal interest he shared with the Kirchicks” and

“when it began or when it ended.” (Docket Entry # 74, p. 17).

Plaintiffs argue that “Rudnick and the Kirchicks shared no

legally cognizable common interest even though they were

litigating against the Plaintiffs simultaneously because they

were separate matters.” (Docket Entry # 74, p. 17). More

specifically, “Rudnick and the Kirchicks were never co-parties

in any litigation they filed against [p]laintiffs” and “[t]heir

separate suits against [p]laintiffs were unrelated.” (Docket

Entry # 74, p. 17). Plaintiffs also allege that “two people []

represented by the same attorney . . . can freely share legal

advice among them without waiver . . . only when the parties are

represented by the same counsel in the same matter,” and, even

so, “[t]hey still need to demonstrate a common interest . . . .”

(Docket Entry # 74, p. 17).

With respect to the third element of the common interest

doctrine, Rudnick argues that he “never waived his privilege”

because waiver “under the common interest doctrine[] requires

the consent of all parties who hold the privilege” and he never

consented to a waiver. (Docket Entry # 67, pp. 7-8) (emphasis

omitted); see (Docket Entry # 79, pp. 3-5). He further argues

that he “made every possible attempt to preserve and protect his

privilege by consistently asserting the attorney-client

privilege at his deposition[] and filing an opposition to

[plaintiffs’] motion to compel” in the White litigation.

(Docket Entry # 67, p. 8); see (Docket Entry # 79, p. 5).

Plaintiffs, in turn, maintain that Rich May’s disclosure of

defendants’ correspondence operated as a waiver because: Rudnick

has not proven that he “took reasonable steps to prevent the

‘inadvertent’ disclosure”; he has “taken an extraordinary amount

of time to raise the issue”; the size of the disclosure was

“substantial” as compared to the size of the production; the

disclosure “has been widely disseminated”; and “fairness

dictates that the privilege should be deemed waived, especially

when compared with [d]efendants’ lack of diligence.” (Docket

Entry # 74, pp. 12-16); see (Docket Entry # 80, pp. 4-5).7

For the following reasons, this court finds that the common

interest doctrine does not apply here. As a preliminary matter,

and as plaintiffs note, Rudnick never clearly identifies what

the “common interest” is that defendants purportedly share. See

(Docket Entry # 74, p. 17); see generally (Docket Entry ## 67,

79). Instead, he points to “Attorney Brooks’ June 11, 2018

correspondence,” in which he alleges that Attorney Brooks

“propos[ed] a ‘global resolution’ for all the differences that

existed between the” parties. (Docket Entry # 67, pp. 4, 7)

(Docket Entry # 67-1). That correspondence, Rudnick argues,

“establishes that communications between []Rudnick, the

Kirchicks and their counsel fall within the common interest

doctrine.” (Docket Entry # 67, p. 7). This court disagrees.

If the common interest among defendants is obtaining a “global

resolution” of the parties’ disputes, at that rate plaintiffs

would also share that interest. But certainly communications

between plaintiffs and defendants would not be subject to the

attorney-client privilege.

7 Rudnick does not present a waiver argument under the common

doctrine that examines these various factors. See generally

(Docket Entry # 67, pp. 7-9) (Docket Entry # 79, pp. 2-3). This

court will examine such factors below in connection with the

parties’ arguments as to potential waiver under Rule 502.

Moreover, even if the correspondence from plaintiffs’

counsel can be said to evidence that counsel’s belief that

defendants were engaged in a joint defense, that does not mean

that defendants did in fact share a common interest and were

engaged in a joint defense. The same applies to any supposed

belief that Kaiser may have had that “the disputes with

[]Rudnick and the Kirchicks” were a “‘single dispute.’” (Docket

Entry # 79, p. 3). Put simply, this court is not persuaded that

how plaintiffs and plaintiffs’ attorneys treated the disputes

with defendants is indicative of whether a common interest did

actually exist among defendants. It is also dubious that,

contrary to Rudnick’s representations, “Attorney Henchy and

Attorney Riley were representing the Kirchicks contemporaneously

with []Rudnick.” (Docket Entry # 67, p. 6).8 For these reasons,

8 In his summary of the relevant facts and procedural history,

for example, Rudnick indicates that: Attorney Henchy represented

him when he sued Kaiser in August 2018 for “contractual

interference with [his] accepted offer for a home”; Attorney

Riley represented the Kirchicks in a dispute arising from their

requests that plaintiffs remove two pear trees, which “then

devolved into another dispute regarding property and parking

rights”; Attorney Henchy represented Rudnick also in connection

with harassment prevention orders that Kaiser sought against

defendants in June 2018; Attorney Henchy represented him during

his February 2019 deposition; and the law firm Rich May

represented the Kirchicks in the White litigation. (Docket

Entry # 67, pp. 1, 3-5). Any “contemporaneous” representation

of Rudnick and the Kirchicks by the same counsel for the same

dispute is not evident here.

Rudnick has failed to establish the first element of the common

interest doctrine.

Similarly, as to the second element of the common interest

doctrine, this court disagrees that defendants’ communications

“as to how to respond to []Kaiser’s repeated demands . . . were

clearly designed to further [] [de]fendants’ joint defense.”

(Docket Entry # 67, p. 8). It is unclear whether, at the early

stage of the parties’ disagreements in 2017 in which some of the

communications between defendants took place, Rudnick or the

Kirchicks were even represented by counsel. See Hanover, 870

N.E.2d at 1109 (“[T]he common interest doctrine ‘extends the

attorney-client privilege to any privileged communication shared

with another represented party’s counsel in a confidential

manner for the purpose of furthering a common legal interest.’”

(citation omitted) (emphasis added)). Nor is it clear what the

defendants’ “joint defense” would have been, particularly given

that they filed separate lawsuits against plaintiffs. This

court is therefore unpersuaded that the communications between

Rudnick and the Kirchicks were “clearly designed to further” a

joint defense. See (Docket Entry # 67, p. 8). Thus, Rudnick

has also failed to establish the second element of the common

interest doctrine.

Even assuming arguendo that Rudnick had successfully

demonstrated that his communications with the Kirchicks “‘were

made in the course of a joint defense effort’” and “‘designed to

further the effort,’” he has not established the third and final

element of the common interest doctrine: that the “‘the

privilege has not been waived.’” See Hanover, 870 N.E.2d at

1113 (citation omitted). As previously noted, Rudnick argues

that “waiver . . . under the common interest doctrine[] requires

the consent of all parties who hold the privilege,” regardless

of “whether the parties are represented by the same or separate

counsel.” (Docket Entry # 67, p. 7) (citing ZVI Const. Co., LLC

v. Levy, 60 N.E.3d 368, 378 (Mass. App. Ct. 2016)). In support

of this proposition, Rudnick relies on ZVI Const. Co., LLC v.

Levy, where the court noted that “there are many cases holding

that, in circumstances where multiple clients are jointly

represented by the same counsel, or in the analogous situation

where multiple clients represented by separate counsel join

together pursuant to a so-called ‘common interest’ or ‘joint

defense’ agreement, all of the clients must waive the attorney-

client privilege for a waiver to occur.” ZVI, 60 N.E.3d at 378.

Plaintiffs dispute that ZVI is applicable to this case on the

basis that it “involved co-clients in the same matter

represented by the same counsel, and the parties asserting the

privilege ‘acted repeatedly and successfully to protect the

privilege of the subject communications.’” (Docket Entry # 74,

p. 19) (citing ZVI, 60 N.E.3d at 379). In his reply (Docket

Entry # 79), Rudnick responds that ZVI is analogous to this case

because “[]Rudnick and the Kirchick[s] were represented by both

Attorney Henchy and Attorney Riley contemporaneously regarding

their collective disputes with [] [p]laintiffs.” Plaintiffs are

correct that ZVI is dissimilar to this action, but it is

primarily because the parties in that case did not dispute that

the individuals asserting the privilege had previously entered

into a “common interest” agreement. ZVI, 60 N.E.3d at 378. As

noted previously, Rudnick has failed to show that he and the

Kirchicks were jointly represented by the same counsel or that

they shared a “common interest” or “joint defense.” The common

interest doctrine therefore does not apply here, regardless of

whether Rudnick consented to the Kirchick’s disclosure and

thereby “waived” his purported privilege. See ZVI, 60 N.E.3d at

378. As further detailed below, however, this court concludes

that, even if the attorney-client privilege (and, by extension,

the common interest doctrine) applied here, Rudnick subsequently

waived the privilege.

Finally, and again assuming arguendo that there was a

common interest among defendants, Rudnick has failed to meet his

burden of showing that the communications between Rudnick and

the Kirchicks were subject to the attorney-client privilege.

See Woods Hole, 2020 WL 9741335, at *4 (“[B]ecause the [common

interest] privilege is derivative of attorney[-]client

privilege, a proponent must also demonstrate that the statement

in question was made with respect to representation and in

confidence.”); see also McCarthy, 972 N.E.2d at 1045-1046;

Cavallaro, 284 F.3d at 250. He has not demonstrated that the

“that the statement[s] in question [were] made with respect to

representation and in confidence.” See Woods Hole, 2020 WL

9741335, at *4. To begin with, Rudnick’s privilege log

identifying the purportedly privileged communications simply

lists, as a description of the claimed privilege for each

document, either “[l]egal strategy” or “[e]xpert retention.”

See generally (Docket Entry # 68-1). Rudnick also does not

provide this court with actual examples of, via exhibits or

otherwise, the communications that he claims are privileged.

Neither his privilege log nor his motion for a protective order

therefore shed any light as to how the communications between

Rudnick and the Kirchicks are subject to the attorney-client

privilege.

This court also notes that Rudnick does not identify a

particular subset of communications between him and the

Kirchicks that demonstrate a “joint defense” but rather seeks a

protective order as to all of “the communications reflected in

his privilege log.” (Docket Entry # 67, p. 2). As noted above,

Rudnick has failed to show that all those communications are

privileged. Without further details or limitations, and because

the attorney-client privilege is narrowly construed, this court

declines to issue a blanket protective order over all those

communications. See Clair, 982 N.E.2d at 40.9

B. Inadvertent Disclosure

The “common interest” doctrine aside, Rudnick also

addresses waiver of the attorney-client privilege under Rule

502. See (Docket Entry # 67, p. 10). Relying on Rule 502, he

argues that “[d]espite the fact that Rich May disclosed the

privileged communications, the communications remain privileged

where []Rudnick never assented and had no knowledge of the

inadvertent disclosure.” (Docket Entry # 67, p. 10).

Plaintiffs deny that the disclosure was inadvertent and contend

that, “even had the disclosure been inadvertent, any privilege

protections were waived by [the] disclosure.” (Docket Entry #

74, pp. 10, 12). The disclosure operated as a waiver,

plaintiffs contend, because: Rudnick has not proven that he

“took reasonable steps to prevent the ‘inadvertent’ disclosure”;

he has “taken an extraordinary amount of time to raise the

9 While Rudnick’s motion for a protective order (Docket Entry #

67) focuses on communications between Rudnick and the Kirchicks,

Rudnick’s privilege log also lists a handful of communications

between Rudnick and one or more of his attorneys. See, e.g.,

(Docket Entry # 68-1, document 371). To the extent Rudnick

seeks a protective order that includes the communications with

his attorneys, he has failed to meet his burden of showing that

such communications are subject to the attorney-client

privilege. See Clair, 982 N.E.2d at 41 n.28.

issue”; the size of the disclosure was “substantial” as compared

to the size of the production; the disclosure “has been widely

disseminated”; and “fairness dictates that the privilege should

be deemed waived, especially when compared with [d]efendants’

lack of diligence.” (Docket Entry # 74, pp. 12-16); see (Docket

Entry # 80, pp. 4-5).

Even if the disclosure was indeed “inadvertent,” this

court agrees with plaintiffs that Rudnick has waived any

attorney-client privilege Rudnick he alleges to have had. In

determining whether Rudnick waived his privilege, this court

examined a variety of factors: “‘(1) the reasonableness of the

precautions taken to prevent inadvertent disclosure, (2) the

amount of time it took . . . to recognize its error, (3) the

scope of the production, (4) the extent of the inadvertent

disclosure, and (5) the overriding interest of fairness and

justice.’” See Santiago, 2015 WL 717945, at *6 (citation

omitted). First, as to reasonable precautions Rudnick may have

taken to prevent the disclosure, he argues that “through motion

practice and oral argument [he] continued to maintain that his

communications with the Kirchicks remained privileged, even

after certain communications were produced in response to the

subpoena served on the Kirchicks in the White litigation.”

(Docket Entry # 79, p. 5). While this weighs against finding

waiver, the remaining factors weigh in favor of waiver, as

further detailed below.

As to the second factor, Rudnick raised the privilege issue

more than two years after most of the documents were disclosed

in production. (Docket Entry # 74-1, ¶¶ 19-20). Rudnick argues

that “it was only after commencing discovery that [his] current

counsel was able to understand the origin of the disclosure and

therefore prepare” a motion for a protective order. (Docket

Entry # 79, p. 6). On April 4, 2021, however, plaintiffs filed

their complaint in this action that referenced and attached

copies of correspondence that Rudnick now alleges are

privileged. See generally (Docket Entry # 1); see (Docket Entry

# 74, pp. 13-14). Even if this court assumes that “[]Rudnick’s

current counsel was able to understand the origin of the

disclosure” only after commencing discovery (Docket Entry # 67,

p. 6), it still does not explain why he did not move for a

protective order after discovering the purportedly privileged

documents in the complaint.

With respect to the scope of the production and the extent

of the disclosure, the Kirchicks’ production was several hundred

pages (Docket Entry # 74, p. 15) (Docket Entry # 80, p. 4), “the

majority” of which Rudnick alleges consists of “[attorney-

client] privileged communications.” (Docket Entry # 67, p. 5).

The disclosure was therefore substantial “as compared to the

size of [the] production,” suggesting that it was not “a

reasonable mistake.” See Santiago, 2015 WL 717945, at *7–8; see

also Amgen Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287,

292 (D. Mass. 2000). Additionally, and as plaintiffs note,

“[t]he Kirchick production has not only been viewed by

[p]laintiffs and their multiple sets of counsel” but also “all

other counsel (and presumably forwarded to their clients) in at

least three different cases, and a partial production has been

made in a fourth case.” (Docket Entry # 74, p. 15). The extent

of the disclosure is therefore also substantial, weighing in

favor of waiver. See Santiago, 2015 WL 717945, at *8.

Finally, although this court “is sensitive to the fact that

[Rudnick] may be disadvantaged” by the use of the purportedly

privileged documents in this case, “the overriding interests of

fairness and justice” weigh in favor of waiver. See In re: New

England Compounding Pharmacy, 2016 WL 6883215, at *4. “‘A

determination of the overreaching issue of fairness’ involving

the protection of an attorney-client privileged communication,

‘must be judged against the care or negligence with which the

privilege is guarded with care and diligence or negligence and

indifference.’” In re: New England Compounding Pharmacy, 2016

WL 6883215, at *4 (quoting Figueras v. Puerto Rico Elec. Power

Auth., 250 F.R.D. 94, 98 (D.P.R. 2008) (internal quotations

removed)). Here, the substantial size of the disclosure, the

widespread dissemination of the disclosed documents, and “the

passage of time before” Rudnick “asserted the privilege are

indicative of negligence, not diligence.” See In re: New

England Compounding Pharmacy, 2016 WL 6883215, at *4; see also

Amgen, 190 F.R.D. at 292 (finding waiver where counsel produced

“approximately 200 documents” and discovered the disclosure five

days later). For these reasons, this court finds that Rudnick

has waived any alleged attorney-client privilege he alleges to

have had.

III. Plaintiffs’ Request for Reasonable Expenses and

Attorneys’ Fees Incurred in Responding to Rudnick’s

Motion for a Protective Order (Docket Entry # 67)

A court may award reasonable expenses, including attorneys’

fees, to a party that prevails on a motion for a protective

order. See Fed. R. Civ. P. 26(c)(3); Fed. R. Civ. P. 37(a)(5).

As the prevailing party here, plaintiffs seek an award of

“reasonable expenses and attorney[s’] fees incurred in

responding to” Rudnick’s motion for a protective order (Docket

Entry # 67). (Docket Entry # 74, p. 20); see (Docket Entry #

80, p. 8). Plaintiffs argue that “an imposition of expenses and

fees” is warranted because: “(a) the motion does not include

affidavits or other documents proving the facts on which it is

based, (b) the factual contentions have no support and (c),

given these circumstances, it is reasonable to conclude that

Rudnick’s motion was filed for an improper purpose.” (Docket

Entry # 74, p. 20). Rudnick, in turn, asks this court to “deny

[] [p]laintiffs’ request for expenses and attorneys’ fees.”

(Docket Entry # 79, pp. 5-6).

At this time, this court reserves judgment on plaintiffs’

request for reasonable expenses and attorneys’ fees incurred in

responding to Rudnick’s motion for a protective order (Docket

Entry # 67). Plaintiffs’ request for reasonable expenses and

attorneys’ fees (Docket Entry # 74, p. 20) (Docket Entry # 80,

p. 8) is denied without prejudice, to be renewed at the

conclusion of the case.

CONCLUSION

For the foregoing reasons, Rudnick’s motion for a

protective order (Docket Entry # 67) is DENIED and plaintiffs’

request for expenses and attorneys’ fees (Docket Entry ## 74,

80) incurred in responding to the motion is DENIED without

prejudice.

/s/ Marianne B. Bowler______

MARIANNE B. BOWLER

United States Magistrate Judge