This Court has before it Plaintiff FDB II Associates’ (“FDB”) Motion to Compel which seeks better responses to three interrogatories and resolution of the parties’ privilege disputes. (DE 118). Defendants filed their opposition papers on September 1, 2009 (DE 129) and FDB filed its reply papers on September 17, 2009 (DE 135). On September 25, 2009, Defendants filed a Motion to Strike portions of FDB’s reply brief. (DE 138). FDB responded to that motion on October 13, 2009 (DE 141) and Defendants filed a reply on October 23, 2009 (DE 144).[2]

Also before the Court is Defendant Arnold Mullen’s Motion for a Protective Order filed on August 25, 2009. (DE 124). FDB filed its opposition papers on September 17, 2009 (DE 134), and Defendant Mullen filed reply papers on September 28, 2009 (DE 139). These matters are now ripe for the Court’s review.

BACKGROUND

This case stems from Plaintiffs’ investment in a planned Utah resort known as Powder Mountain. According to the Subscription Agreement entered into by Plaintiffs and Defendant Powder Mountain, LLC (“the Company”), certain Utah mountain top property was to be purchased by Defendant Stone Creek Investment Company, LLC (“the Manager”), where Powder Mountain planned to develop and operate a golf community/ski resort. (DE 118, Exhibit 9); (DE 129 at page 2). It is undisputed that Defendant Thomas Strauss was an agent of Stone Creek and, together with Powder Mountain, they were represented by Defendant Marvin Rosen, an attorney at the law firm of Defendant Ruden, McClosky, Smith, Schuster & Russell, P.A. (“Ruden”), in connection with the underlying project. According to Defendants Ruden and Rosen, the law firm provided legal services to Stone Creek, Powder Mountain and Strauss in connection with the attempted purchase of the Utah property and also prepared certain offering documents in connection with the efforts to raise capital for the project. (DE 129 at page 2). It appears from the parties’ filings that Defendant Arnold Mullen was also involved in raising investment capital for the project, but his precise relationship with the other Defendants is disputed.[3]

*2 According to Plaintiffs, the Powder Mountain project was a fraudulent investment scheme and Defendants enticed their participation by “misrepresenting the nature and status” of the project and “withholding critical material information,” such as the project’s “fatal undercapitalization.” (DE 118 at page 2). Evidently, Stone Creek failed to purchase the proposed Utah property (resulting in a separate lawsuit brought by the seller in Utah state court) and then failed to repay the money invested by Plaintiffs as required by the project’s Subscription Agreement. With the instant lawsuits, Plaintiffs allege breach of contract, fraud, and breach of fiduciary duty, among other claims.

Presently before the Court are a series of discovery disputes arising from Ruden and Rosen’s responses to Plaintiff FDB’s discovery demands. Specifically, Ruden and Rosen have withheld certain discovery on the basis that it is privileged and provided a privilege log. (DE 118, Exhibit D). With its motion to compel, FDB objects to Ruden and Rosen asserting a privilege over communications with Defendants Mullen and Strauss. FDB also rejects Ruden and Rosen’s objections to three of FDB’s interrogatories.

In response, Ruden and Rosen rely on several different bases to assert that their communications with Mullen are privileged. First, Ruden and Rosen contend that Mullen held himself out as a representative of Stone Creek and Powder Mountain and that, therefore, Mullen’s communications with Ruden and Rosen are privileged based on his purported agency relationship with their clients. (DE 129 at pages 3-4).[4] Second, they contend that to the extent Mullen believed Rosen was his attorney for “certain discrete” unidentified legal matters, such is sufficient to assert a direct privileged relationship with him. Third, Ruden and Rosen contend that any communications with Mullen are protected by the joint defense privilege. With respect to Ruden and Rosen’s communications with Strauss, there is no dispute that Strauss was the firm’s client. However, FDB claims that any privilege has been negated by the crime-fraud exception. Ruden/Rosen claim there is insufficient evidence to apply the exception. (DE 129).

Also before the Court is Defendant Mullen’s motion for a protective order stemming from the inadvertent disclosure of a four-paged document which Mullen claims is privileged. The document (filed under seal with the Court) was produced in response to FDB’s Request for Production. Mullen states that the document was “not intended to be produced to FDB” and contends that the communication is protected by the attorney-client privilege and also the joint defense doctrine. Mullen seeks an order prohibiting the document’s use in this lawsuit and directing that the document be returned or destroyed.

DISCUSSION

1. FDB’s Motion to Compel

A. The Privilege Disputes

(i) The Attorney-Client Privilege:

Generally, where federal court jurisdiction rests on diversity of citizenship, as it does in this case, procedural issues are governed by federal law. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). This extends to privilege issues associated with claims of work product. See Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199, 201 (M.D. Fla. 1990) (citing Hickman v. Taylor, 329 U.S. 495, 512 (1947)). However, state law governs claims of attorney-client privilege. See Auto Owners Ins. Co.,135 F.R.D. at 201. Since FDB does not raise any objection to Ruden and Rosen’s assertion of a work product privilege, Florida law will govern the privilege claims in dispute.

*3 It is well settled that the attorney-client privilege belongs to the client alone (see State v. Rabin, 495 So.2d 257, n.8 (Fla. App. Dist. Ct. 1986)) and that he also bears the burden of proof. See Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994) (citing Fisher v. United States, 425 U.S. 391 (1976)). Generally, the attorney-client privilege applies to confidential communications made in the rendition of legal services to a client. See Deason, 632 So. 2d at 1380. However, if a document for which a privilege is claimed is disclosed to a third party, then the privilege is waived. See Gutter v. E.I. Dupont de Nemours & Co., 1998 WL 2017926, *3 (S.D. Fla. May 18, 1998). This Court is mindful that the privilege is to be narrowly construed. See United States v. Nixon, 418 U.S. 683, 710 (1974) (stating that privileges should be narrowly construed because they impede “the search for truth”).

The Federal Rules provide that

Fed. R. Civ. P. 26(b)(5).

Moreover, Local Rule 26.1(G)(3) provides that “unless divulgence of such information would cause disclosure of the allegedly privileged information” the party alleging the privilege must specify (1) the type of document being withheld; (2) general subject matter of the document; (3) the date of the document; and (4) “such other information as is sufficient to identify the document or electronically stored information” including the author, addressee, and any other recipient and where not apparent, the relationship of those people to each other. See S.D. Fla. L.R. 26.1.G.3(c) (April 2009). The rule requires the preparation of a privilege log for all documents and communications withheld because of a claimed privilege, except those that are prepared after commencement of the litigation. Id. A privilege log should generally provide information that will allow the Court to assess the claim of privilege, including the capacity of all individuals and entities involved. See Universal City Dev. Partners, Ltd. v. Ride & Show Eng’g, Inc., 230 F.R.D. 688, 695 (M.D. Fla. 2005).

The Court has reviewed Ruden and Rosen’s 52-paged privilege log attached as an exhibit to FDB’s motion. (DE 118, Exhibit D). It appears that FDB does not object to many of the items identified on the log as privileged. Nor has FDB advised the Court of specific entries on the log to which it objects. Rather, FDB’s motion only seeks a determination as to certain types of privileges asserted by Defendants. Therefore, this decision will address the privileges asserted by Ruden/Rosen that are in dispute, rather than specific entries on the privilege log.

(ii) Attorney-Client Privilege Belongs to Client but Extends to Agent

Under Florida law, “[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.” Developers Sur. and Indem. Co. v. Harding Village, Ltd., 2007 WL 2021939, *1 (S.D. Fla. July 11, 2007)(quoting Fla. Stat. § 90.502(2)).

*4 This statute and the case law render it indisputable that the attorney-client privilege belongs solely to the client. See MCC Management of Naples, Inc. v. Arnold & Porter, LLP, 2008 WL 4642835, *2 (M.D. Fla. Oct. 20, 2008); State v. Rabin, 495 So.2d 257, n.8 (Fla. App. Dist. Ct. 1986). See also AARP v. Kramer Lead Marketing Group, 2005 WL 1785199, *4-5 (M.D. Fla. July 26, 2005)(attorney-client privilege applies only if the asserted holder of the privilege is or sought to become a client).

However, the attorney-client privilege does extend to communications between the client’s agent and the attorney. See Leor Exploration & Production LLC v. Aguiar, 2009 WL 3097207, *3 (S.D. Fla. Sept. 23, 2009)(citing Gerheiser v. Stephens, 712 So.2d 1252, 1254-55 (Fla. Dist. Ct. App. 1998)(finding that a prisoner’s mother could assert the attorney-client privilege on his behalf because she acted as his agent in securing an attorney for him).

To establish an actual agency relationship, three elements must be established: (1) acknowledgment by the principal that the agent will act for it, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent. Rubin v. Gabay, 979 So.2d 988, 990 (Fla. Dist. Ct. App. 2008)(citing State v. Am. Tobacco Co., 707 So.2d 851, 854 (Fla. Dist. Ct. App. 1998)). To establish that an apparent agency exists, there must be: (1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party in reliance upon such representation.” Rubin, 979 So.2d at 990(citing Blunt v. Tripp Scott, P.A., 962 So.2d 987, 989 (Fla. Dist. Ct. App. 2007)). Once an agency relationship is established, “[t]he acts of an agent, performed within the scope of his real or apparent authority, are binding upon his principal.” Palafrugell Holdings, Inc. v. Cassel, 940 So.2d 492, 494 (Fla. Dist. Ct. App. 2006)(quoting Indus. Ins. Co. v. First Nat’l Bank, 57 So.2d 23, 26 (Fla. 1952)).

Here, Ruden and Rosen raise several agency claims. First, they contend that Mullen was an agent of their clients, Stone Creek and Powder Mountain. Notwithstanding the language in the Subscription Agreement which identifies Mullen as a principal of Stone Creek, Mullen denies any such agency relationship. (DE 118, Exhibit E). Notably, neither Stone Creek nor Powder Mountain has affirmatively stated whether or not Mullen was their authorized agent. Second, Ruden/Rosen contend that three different individuals were agents for their client Strauss (Dennis Egidi, Patricia Zinovik, and Henry Krasnow). Again, there is no affidavit from Strauss indicating that these people were authorized to act as his agents.

Ultimately, it will be for the finder of fact to determine whether these individuals had an agency relationship with the authority to bind any of Ruden/Rosen’s former clients and current co-defendants. See Sumpolec v. Pruco Life Ins. Co., 563 So.2d 778, 779 (Fla. Dist. Ct. App. 1990)(issues regarding the real and/or apparent authority of an agent to bind a corporate principal is a mixed question of law and fact that should be submitted to the jury); Semoran Pines Condominium Ass’n v. Arab Termite and Pest Control of Florida, Inc., 543 So.2d 417, 418 (Fla. Dist. Ct. App.1989)(whether purported agent had authority to bind defendant was question for fact finder).

*5 In any event, there is no need for this Court to consider whether there is sufficient evidence of agency to support a claim of privilege because the only assertion of privilege presently before the Court has been raised by Ruden and Rosen, neither of whom possess the privilege. See MCC Management of Naples, Inc. v. Arnold & Porter, LLP, 2008 WL 4642835, *2 (M.D. Fla. Oct. 20, 2008)(attorney-client privilege belongs to the client and not the attorney). Here, none of Ruden or Rosen’s clients (Stone Creek, Strauss or Powder Mountain), nor any agent purportedly acting on their behalf, has asserted that their communications with Ruden and Rosen are privileged. Indeed, Ruden and Rosen do not even claim to be asserting the privilege on their former clients’ behalf. Rather, it appears that Ruden and Rosen’s assertion of the privilege is simply a means of protecting themselves from disclosing evidence that might be harmful to them in defending against this lawsuit. Such is not a permissible basis for asserting a privilege. Id. (the attorney-client privilege is “not intended to protect the attorney” rather, it is “designed to protect confidential information only”)(quoting Ashcraft v. Harvey, 315 So.2d 530, 531 (Fla. Dist. Ct. App. 1975)). See also Fla. Stat. Ann. § 90.502 (Law Revision Council Note 1976)(“[a] lawyer may not claim the privilege on his own behalf”).

Since Ruden and Rosen cannot use the attorney-client privilege as a basis for withholding communications with their clients Strauss, Powder Mountain or Stone Creek, there is also no basis for extending the privilege via an agency relationship and, therefore, documents withheld on these bases must be produced within two weeks of this Order.

(iii) Attorney-Client Relationship between Rosen and Mullen

Notwithstanding that Ruden and Rosen state that they have no record of Mullen ever being a client of their firm (see Responses to FDB’s Interrogatory No. 4 (DE 118, Exhibit C)), they assert an attorney-client privilege for communications with Mullen based on Mullen’s belief that Rosen was his attorney for “certain discrete” unidentified legal matters. Mullen concedes that he did not enter into a retainer agreement with Ruden/Rosen and never paid them a fee. See Mullen Aff. at ¶5-6 (DE 124, Exhibit B).

It is well settled that the existence of a formal retainer agreement is not essential to finding an attorney-client relationship. Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1281 (11th Cir. 2004). As the Eleventh Circuit recently reiterated, in the absence of a retainer agreement, “the test Florida courts have used to determine if an attorney-client relationship exists is: (1) the putative client consults with an attorney and, subsequently, (2) the client has a reasonable subjective belief ‘that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.’ ” In re Lentek Intern., Inc., 2009 WL 3004043, *2 (11th Cir. Sept. 22, 2009)(quoting Jackson, 372 F.3d at 1281)(citing Bartholomew v. Bartholomew, 611 So.2d 85, 86 (Fla. Dist. Ct. App. 1992)). The Eleventh Circuit has repeatedly emphasized that the test is only applicable after a putative client has consulted with an attorney. In re Lentek Intern., Inc., 2009 WL 3004043 at *2; Jackson, 372 F.3d at 1282.

Here, there is no evidence that Mullen ever consulted with Rosen in an individual capacity on his own behalf. Although there is evidence that Mullen frequently communicated with Rosen in the context of Rosen’s representation of Stone Creek and Powder Mountain, there is no evidence that Mullen ever met with Rosen and “manifested an intention” to seek legal advice for himself.[5] See In re Lentek Intern., Inc., 2009 WL 3004043 (Court affirmed finding that law firm only represented corporation’s president in his individual capacity and did not represent the corporation because no one ever consulted with the law firm on the corporation’s behalf). Given that Mullen has failed to establish that he sought confidential legal advice from Rosen on his own behalf and that Rosen denies such representation existed, the Court finds no basis for applying the attorney-client privilege to such an ambiguous and disputed relationship. “An attorney-client relationship cannot be formed when the attorney has literally no basis to know that a putative client thinks the lawyer has been retained.” Jackson, 372 F.3d at 1282. See also Hope For Families & Community Service, Inc. v. Warren, 2009 WL 174970, *23 (M.D. Ala. Jan. 26, 2009)(where there was no evidence of legal representation as to underlying matter and attorney denied performing such legal work, court found no attorney-client privilege).

(iv) The Joint Defense Privilege

*6 The “joint defense” doctrine is an exception to the general rule that once a privileged communication is shared with a third party, the privilege is waived. The joint defense privilege permits “litigants who share unified interests” to exchange privileged information in the preparation of their cases “without losing the protection afforded by the privilege.” Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437, 440 (Fla. Dist. Ct. App. 1987). The joint defense privilege does not apply to all communications between the parties; rather, it only applies to those “communications made for the limited purpose of common defense.” Developers Sur. and Indem. Co. v. Harding Village, Ltd., 2007 WL 2021939, *3 (S.D. Fla. July 11, 2007)(citing Visual Scene, 508 So.2d at 441). There must be a common legal interest that relates to litigation, although actual litigation need not be ongoing for this privilege to apply. See Infinite Energy, Inc. v. Econnergy Energy Co., 2008 WL 2856719, *2 (N.D. Fla. July 23, 2008). See also Visual Scene, Inc., 508 So.2d at 440 (noting that courts have extended the privilege to “co-parties to potential litigation”). “So long as transferor and transferee anticipate litigation against a common adversary on the same issue or issues, they have strong common interests in sharing the fruit of the trial preparation efforts.” Visual Scene, Inc., 508 So.2d at 442-43 (citation omitted). For the privilege to apply, the information must be exchanged for the limited purpose of assisting in the parties’ “common, litigation-related cause.” Id. at 441.[6]

In an affidavit, Attorney Rosen states that he has “worked jointly” with his co-defendants and their attorneys “towards the common interest of defending the threats, claims and allegations made by FDB” since July 9, 2007. See Rosen Affidavit at ¶ 10 (DE 129). On that date, Clay Bradley, the general partner of FDB, sent an email to Mullen, and copied Strauss and Rosen. In the email Bradley expressed frustration that none of the three men were responding to his repeated requests for information. Bradley stated that if he did not receive a response within two days, he would be “forced to turn this over to counsel.” See Rosen Aff., Exhibit B. According to Rosen, this email “raised the possibility” that FDB might bring a lawsuit against them. See Rosen Aff. at ¶ 9.

Following the July 9, 2007 email, a letter from FDB’s attorney to Rosen dated March 12, 2008, definitively states FDB’s intention to “file claims against Stone Creek, Powder Mountain, LLC, Tom Strauss, Marvin Rosen, Ruden McClosky and Arnold Mullen for breach of contract, fraud, breach of fiduciary duty, negligent misrepresentation, and unfair and deceptive trade practices.” See Defendants’ Exhibit 4 (DE 129). The lawsuit against these Defendants was ultimately commenced in the companion case on July 23, 2008. FDB filed its lawsuit on October 15, 2008.

Undoubtedly, FDB’s email dated July 9, 2007, alerted these Defendants to the likelihood that FDB might initiate litigation against them and thereafter, many of their communications probably related to their common interest in their joint defense, rather than a joint business strategy. See Infinite Energy, Inc., 2008 WL 2856719 at *2 (“common interest privilege applies when persons share a common legal interest, not when the primary common interest is a joint business strategy”).[7] However, to ensure that documents unrelated to their joint defense are not being withheld, the Court will conduct an in camera review of any and all documents withheld on the basis of a joint defense privilege.

*7 Within two weeks of this Order, Ruden and Rosen are directed to provide the Court with copies of these documents, unless they are privileged on another basis which the Court has not overruled.[8]

(v) Crime-Fraud Exception

It is well settled that an otherwise valid assertion of privilege “can be overcome by the proper invocation of the crime-fraud exception.” Gutter v. E.I. Dupont De Nemours, 124 F. Supp. 2d 1291, 1298 (S.D. Fla. 2000)(citing Cox v. Administrator United States Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994)).

Florida law states that there is no attorney-client privilege when “[t]he services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.” Fla. Stat. § 90.502(4)(a).

The purpose of the crime/fraud exception is to prevent the attorney-client privilege from being used as a “cloak for illegal or fraudulent behavior . . . the privilege does not apply where legal representation was secured in furtherance of intended, present, or continuing illegality.” In re Grand Jury Proceedings, 680 F.2d 1026, 1028 (5th Cir. 1982). The exception applies “even where the attorney is completely unaware that his advice is sought in furtherance of such an improper purpose.” Id.

As set forth above, the Court has already rejected the assertion of an attorney-client privilege between Ruden/Rosen and Strauss because the client, Strauss, has not sought the protections of the privilege. Ruden and Rosen have impermissibly asserted the privilege on their own behalf. Where there has been no finding of a valid attorney-client privilege, the Court need not consider whether an exception, such as the crime-fraud exception, applies.

(vi) Settlement Documents

There are several entries on Ruden and Rosen’s privilege log which indicate that documents involved in settlement discussions have been withheld. However, the settlement documents appear to involve the litigation over the failed property purchase in Utah and were not attempts to settle the instant lawsuit.

Under Florida law,

Fla. Stat. § 90.408.

“It is well settled that even though settlement offers are generally not admissible as evidence in the lawsuit in which the offers are made, an offer of settlement in one case can be relevant in another case.” Agan v. Katzman & Korr, P.A., 328 F. Supp. 2d 1363, 1372-73 (S.D. Fla. 2004)(citing Ritter v. Ritter, 690 So.2d 1372, 1376 (Fla. Dist. Ct. App. 1997)(settlement offer in wife’s personal injury lawsuit was discoverable in her subsequent divorce proceeding).

Here, evidence pertaining to settlement discussions in the case regarding the failed Utah property purchase may indeed be relevant to Plaintiffs’ instant claims of fraud because the purchase of the property was an essential component of the success of the Powder Mountain Project. At this stage, Plaintiffs are entitled to discover such relevant information. Whether such evidence will be admissible at trial is an entirely separate matter to be decided by the District Court at a later date. See Agan, 328 F. Supp. 2d at 1374 (evidence of settlement efforts in foreclosure action was discoverable in subsequent suit regarding Fair Debt Collection Practices Act, though admissibility would be determined at a later stage). Accordingly, within two weeks of this Order, Ruden and Rosen are directed to produce withheld settlement documents, unless they are privileged on another basis which the Court has not overruled.

B. The Disputed Interrogatories

*8 FDB contends that Ruden and Rosen’s objections to three of its interrogatories are unfounded and that they should be compelled to respond.

Interrogatory No. 3 states:

Ruden and Rosen objected to the interrogatory as overbroad, seeking irrelevant information, and information protected by the work product and attorney-client privileges. They also contend that they are not permitted to divulge such confidential information under Rule 4-1.6 of the Rules Regulating the Florida Bar. (DE 118, Exhibit C).

In his deposition, Rosen acknowledged that he has known Strauss since 1974 and has represented him since 1984 in “many, many transactions.” See Rosen Dep. Tr. (6/17/08) at page 10 (DE 118, Exhibit L). According to FDB, Rosen also represented Strauss in his prior felony fraud conviction. (DE 118 at page 12). FDB contends that Ruden/Rosen’s knowledge of Strauss’s past misconduct and failure to disclose his prior conviction are relevant to the claims of fraudulent misrepresentation in the Complaint.

At the outset, the Court notes that Ruden/Rosen do not provide a privilege log in connection with their assertion of privilege as to their prior representation of Strauss and, in any event, as stated above, Ruden/Rosen are not the holders of the privilege and, thus, they are not entitled to assert its protections on their own behalf. The Court also rejects their claims that this interrogatory is overly broad and seeks irrelevant information. Clearly, the relationship between the co-defendants and their knowledge of each other’s past fraudulent activity may be relevant to the instant claims of fraud because such evidence bears on issues of notice, intent, motivation, and absence of mistake. See, e.g., Turley v. State Farm Mut. Auto. Ins. Co., 944 F.2d 669, 673-75 (10th Cir. 1991)(evidence that co-insured knew of plaintiff’s prior insurance scam bore on co-insured’s “knowledge, intent, and absence of accident or mistake”).

With regard to Rule 4-1.6, the Court is mindful that the rule forbids an attorney from “knowingly revealing either a ‘confidence’ or a ‘secret’ of a client” and that this “obligation is broader than and independent of the attorney-client privilege” in that it “applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” See Comment to Rule 4-1.6, Rules Regulating the Florida Bar; In re Duque, 134 B.R. 679, 688 (S.D. Fla. 1991)(citation omitted). Indeed, the Florida Bar has issued opinions “requiring witness-attorneys to invoke the attorney-client privilege on behalf of clients when subpoenaed . . . for client-based information.” In re Duque, 134 B.R. at 688 (citation omitted). See also Ferrari v. Vining, 744 So.2d 480, 482 (Fla. Dist. Ct. App. 1999)(“[i]f a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, rule 4-1.6(a)requires the lawyer to invoke the privilege when it is applicable”).

*9 However, it is well settled that “by vigorously invoking the attorney-client and other privileges” in response to such discovery requests, the attorney is deemed to “have fulfilled [his] ethical obligations” and that ultimately, a court order directing disclosure of an attorney’s confidential client information trumps this ethics rule. In re Duque, 134 B.R. at 688 (citing In re Grand Jury Subpoena, 679 F.Supp. 1403, 1407-08 (N.D. W.Va. 1988)(noting that attorney’s disclosure of client’s confidences and secrets does not violate the disciplinary rules where a court so orders)). See also Comment to Rule 4-1.6, Rules Regulating the Florida Bar (“The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.”).

Here, the Court appreciates Ruden and Rosen’s ethical restrictions under Rule 4-1.6. However, the Court finds that FDB’s need for discovery regarding the relationship between the co-defendants outweighs the confidentiality concerns at issue. Accordingly, Ruden and Rosen are directed to respond to Interrogatory No. 3, but only by providing a list of dates showing when they represented Strauss and the general subject matter of such representation. See In re Duque, 134 B.R. at 688 (although court “appreciate[d]” attorneys’ concern that responding to subpoena would “intrude upon their ethical obligation to guard the confidences and secrets of their client” court declined to quash the subpoena on that basis).

With Interrogatory No. 7, FDB seeks to have Ruden/Rosen “[i]dentify all trusts known to you and established by Strauss or a member of Strauss’s family.” Ruden/Rosen object to the interrogatory as overbroad, and seeking irrelevant information as well as information protected by the attorney/client privilege. They contend that the interrogatory is premature in that it seeks discovery in aid of execution and also that they may not divulge such confidential information under Rule 4-1.6 of the Rules Regulating the Florida Bar. (DE 118, Exhibit C).

FDB contends that the information sought is relevant because “on multiple occasions, Strauss identified certain family trusts as the expected sources of financing for the Powder Mountain Project” and therefore, “the existence or non-existence of those trusts . . . are relevant to the truthfulness of material representations made . . .” (DE 118 at page 13). FDB further states that preliminary discovery has revealed that “at least some of Plaintiff’s investment money was disbursed by the Ruden defendants to Strauss family trusts.” Id.

The Court rejects Ruden/Rosen’s objections on the basis of privilege and Rule 4-1.6 for the reasons stated above. The Court finds that FDB has established the relevance of information regarding certain trusts in Strauss’s control. Indeed, Ruden/Rosen concede that two Strauss family trusts are “connected” to the allegations in the Complaint. (DE 129 at page 18). However, the interrogatory as drafted is overly broad and, thus, the Court will limit it. Ruden/Rosen are directed to identify any Strauss family trusts related to this lawsuit, including any that were represented as sources of financing for the Project and any that received money from Plaintiffs’ investment funds.

With Interrogatory No. 8, FDB seeks to have Ruden

*10 Ruden objected to this request as overly broad and seeking irrelevant information. FDB contends that it is “entitled to review prior lawsuits against defendants to determine if the conduct alleged in its complaint finds support in other allegations made by other parties.” (DE 118 at page 13). Notably, FDB does not cite any legal authority for this proposition.

“Evidence of other lawsuits is typically only relevant if those lawsuits involve similar claims and can be used to establish a pattern or a habit or routine practice.” F & A APLC v. Core Funding Group, L.P., 2009 WL 2214184, n.1 (M.D. La. July 23, 2009)(citing McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482 (5th Cir. 1990)(request for materials related to prior lawsuits was limited to evidence of habit or routine practice which court found relevant to prove conduct alleged in complaint was in conformity with such habit or routine)). This Court fails to see how all of Ruden’s litigation history is relevant to this lawsuit. Rather, Ruden will only be required to identify any lawsuits in the last ten (10) years where the claims brought against it were similar to those raised in this Complaint.

2. Mullen’s Motion for a Protective Order

This motion stems from Mullen’s responses to FDB’s Request for Production wherein Mullen inadvertently disclosed a four-page document (Bates No. AM0031-0034) to FDB.[9] The document is an email and attached memorandum dated March 18, 2008 from Rosen to Strauss and Mullen “discussing and analyzing the facts and law relating to the instant litigation brought by FDB . . . as well as the strategy and likelihood that Strauss and Mullen would prevail if such litigation ensued.” (DE 124 at pages 2-3). Mullen states that the document was “not intended to be produced to FDB” and contends that the communication is protected by the attorney-client privilege and also the joint defense doctrine. Mullen seeks an order prohibiting the document’s use and directing that the document be returned or destroyed.

It is well settled that before a protective order may issue, the movant must show good cause why justice requires an order to protect a party or person from “annoyance, embarrassment, oppression, or undue burden or expense.” See Fed. R. Civ. P. 26(c) (2008). See also Shaffer v. Northwestern Mut. Life Ins. Co., 2007 WL 38853, *3 (N.D. W.Va. Jan. 5, 2007)(the party resisting discovery bears the burden of showing that its objections are valid and should be sustained). To make a showing of good cause, the movant has the burden of showing the injury “with specificity.” Pearson v. Miller, 211 F.3d 57, 72 (3d Cir. 2000). In other words, the party seeking the protective order must show good cause by demonstrating a particular need for protection. See Cippollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986). Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c)test. See Id. (citing United States v. Garrett, 571 F.2d 1323, 1326, n. 3 (5thCir. 1978)(requiring “a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements”); Gen. Dynamics Corp. v. Selb Mfg. Corp., 481 F.2d 1204, 1212 (8th Cir. 1973); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035 (1970 & Supp.1985). Moreover, the harm must be significant, not a mere trifle. Cippollone, 785 F.2d at 1121 (citing Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982).

*11 There is a five-part test for establishing the inadvertent disclosure of privileged materials: 1) the reasonableness of the precautions taken to prevent inadvertent disclosure, 2) the number or extent of inadvertent disclosures, 3) the scope or extent of the overall discovery involved, 4) the time and the measures taken in rectifying the disclosures, and 5) whether the overriding interests of justice would be served by relieving a party of its error. Bray & Gillespie Management LLC v. Lexington Ins. Co., 2009 WL 71678, *11 (M.D. Fla. Jan. 8, 2009).

At the outset, the Court finds that the document is protected by the joint defense privilege because it was dated after the March 12, 2008 letter from FDB’s attorney which definitively stated FDB’s intention to “file claims against Stone Creek, Powder Mountain, LLC, Tom Strauss, Marvin Rosen, Ruden McClosky and Arnold Mullen for breach of contract, fraud, breach of fiduciary duty, negligent misrepresentation, and unfair and deceptive trade practices.” See Defendants’ Exhibit 4 (DE 129). Accordingly, it is evident that when this document was prepared on March 18, 2008, Rosen, Strauss and Mullen had a common interest in defending against the threatened litigation and that this document is a “communication made for the limited purpose of [their] common defense.” Developers Sur. and Indem. Co. v. Harding Village, Ltd., 2007 WL 2021939, *3 (S.D. Fla. July 11, 2007)(citing Visual Scene, 508 So.2d at 440-41) (“litigants who share unified interests” are entitled to exchange privileged information in the preparation of their cases “without losing the protection afforded by the privilege”). See also Infinite Energy, Inc. v. Econnergy Energy Co., 2008 WL 2856719, *2 (N.D. Fla. July 23, 2008). See also Visual Scene, Inc., 508 So.2d at 440 (noting that courts have extended the privilege to “co-parties to potential litigation”).[10]

Having reviewed the substance of the sealed document, the Court further finds that to allow FDB to use the document would be extremely prejudicial to the Defendants, and that the overriding interests of justice are served by relieving Mullen of the error in inadvertently disclosing the document. See Abamar Housing and Development, Inc. v. Lisa Daly Lady Decor, Inc., 698 So.2d 276, 279 (Fla. Dist. Ct. App. 1997)(court found that inadvertently disclosed document did not waive privilege and that “overriding fairness considerations weigh in favor of prohibiting [the] use of the inadvertently received privileged documents”).

Moreover, the Court finds that Mullen’s counsel took reasonable precautions to avoid an inadvertent disclosure, promptly attempted to rectify the error (see Counsel’s July 31, 2009 email (DE 124, Exhibit A)), and that in the scope of the overall discovery in this case, the inadvertent disclosure of one document does not justify a finding that the privilege has been voluntarily waived. See Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684 (S.D. Fla. 2009)(where party took reasonable steps to avoid inadvertent disclosure of privileged documents and acted quickly to rectify it, court found there was no voluntary waiver and ordered the documents destroyed or returned and not to be used).

Therefore, the Court directs FDB to immediately return all copies of the document Bates No. AM0031-0034, including any copies disseminated to third parties, to Mullen’s attorney and the Court will forbid FDB from any further use of, reference to, or reliance on the document.

CONCLUSION

*12 Based on the foregoing, FDB’s Motion to Compel (DE 118) is GRANTED IN PART AND DENIED IN PART; Mullen’s Motion for a Protective Order (DE 124) is GRANTED; and Rosen/Ruden’s Motion to Strike (DE 138) is DENIED. To the extent the Court has granted FDB’s Motion to Compel, Ruden/Rosen must complete all supplemental discovery responses and document production (including documents to be provided to the Court for in camera review) within two weeks of the date of this Order.

DONE and ORDERED in Chambers this 9 day of November, 2009, at West Palm Beach in the Southern District of Florida.

The District Court has consolidated this case with its companion case (No. 08-CV-81185) for purposes of discovery only.

Defendants’ Motion to Strike portions of FDB’s reply brief is DENIED. (DE 138). The Court finds that the arguments in FDB’s reply brief are appropriately responsive to Defendants’ opposition to the motion to compel. See Jones v. City and County of San Francisco, 2009 WL 3047346, n.1 (N.D. Cal. Sept. 18, 2009)(court denied motion to strike reply finding that it did not make any impermissible new arguments). Cf. Trudeau v. Lanoue, 2006 WL 516579, *2 (N.D. Ill. March 2, 2006)(court granted motion to strike where defendant’s reply went “far beyond the scope of any arguments presented” in plaintiff’s response). Notably, Defendants did not seek to file a sur-reply to respond to the allegedly new arguments in the event their motion to strike was denied.

Although the Subscription Agreement describes Strauss and Mullen as “principals of the Manager [Stone Creek]” and indicates that both men “personally guaranteed repayment of the Loan to each Subscriber” (DE 118, Exhibit 9 at page 6), Mullen denies any agency relationship with Stone Creek. Also unresolved is Mullen’s status as a client of Ruden/Rosen.

FDB claims that Mullen was not an authorized agent of any of Ruden’s clients and that Mullen, himself, “emphatically denies any principal or agency relationship with Stone Creek.” (DE 118 at pages 3-4, citing Exhibit E). Therefore, FDB claims that Ruden and Rosen had no basis for believing Mullen was Stone Creek’s representative, with whom communications would be privileged. However, as noted above, the copy of the Subscription Agreement FDB attaches to its motion describes Strauss and Mullen as “principals of the Manager [Stone Creek]” who “personally guaranteed repayment of the Loan to each Subscriber.” (DE 118, Exhibit 9 at page 6).

Mullen has provided an affidavit in connection with his Motion for a Protective Order (to be addressed later in this decision), however, Mullen merely affirms that he “occasionally” sought and received “legal advice from Rosen on discrete issues or questions relating to the Powder Mountain Project.” See Mullen Aff. at ¶ 7 (DE 124, Exhibit B). Mullen’s affidavit does not establish that he sought this advice for himself rather than on behalf of Stone Creek or Powder Mountain.

The Court rejects FDB’s assertion that a defendant must be represented by counsel in order to assert the joint defense privilege. See United States v. Mitan, 2009 WL 3081727, n.3 (E.D. Pa. Sept. 25, 2009)(court recognized that pro sedefendant had a joint defense privilege with his co-defendants and their attorneys).

By that time, the relationship between FDB and the co-defendants had greatly deteriorated as it became evident that the Project was failing. Moreover, allegations of fraud and deception against Strauss, Rosen and Stone Creek had already arisen in the Utah litigation as a result of the failed land purchase.

The Court notes that for many of the withheld documents in dispute on the privilege log, Defendants asserted both a joint defense and work product privilege and that FDB has not raised any objection to Defendants’ assertion of a work product privilege.

The document has been filed under seal pending this Court’s decision on Mullen’s motion.

In his affidavit, Mullen states that he believed his interests with Rosen and Strauss were “aligned” since they had all “been named as potential defendants to these actions.” See Mullen Aff. at ¶ 12.