MCZ/CENTRUM FLAMINGO II, LLC, et al., Plaintiffs, v. CITY OF MIAMI BEACH, Defendant CASE NO. 08-22419-CIV-ALTONAGA/Brown United States District Court, S.D. Florida Entered on FLSD Docket August 06, 2009 Altonaga, Cecilia M., United States District Judge ORDER *1 This Order addresses Defendant, the City of Miami Beach’s (the “City[’s]”) Motion to Compel Production of Purportedly Privileged Evidence (Both Documentary and Testimonial) Because All Plaintiffs’ Privileges Were Waived as a Result of Plaintiffs’ Conduct (“Motion”) [D.E. 101], filed on July 1, 2009. This Motion first came before the Court for a hearing on July 14, 2009 [D.E. 144]. At that hearing, the Court felt an in camera review was justified and instructed the parties to submit a proposed order appointing a Special Master to conduct an in camera review of all materials withheld on grounds of privilege. Based on the foregoing, the Court issued an Order [D.E. 157] on July 16, 2009 granting the Motion in part. On July 29, 2009, the parties presented additional arguments on the City’s Motion. Based on those arguments, the Court revisits the July 16, 2009 Order and oral findings announced on July 29. A. Compliance with Local Rules and Discovery Order The City contends Plaintiffs, MCZ/Centrum Flamingo II, LLC, MCZ/Centrum Flamingo III, LLC and Morton Towers Apartments, L.P. (collectively, “Flamingo”), should not be allowed to assert privilege as to evidence (both documentary and testimonial) from Bernard Zyscovich, Lucia Dougherty, Esq., and others because Flamingo’s privilege logs fail to comport with Local Rule 26.1 G 3(b)[1] and Magistrate Judge Stephen Brown’s September 29, 2008 Discovery Order [D.E. 16].[2] To illustrate its point, the City takes issue with five particular documents listed in Flamingo’s Privilege Logs: (1) three documents that either fail to identify the sender or recipient, leave the author unnamed, or are undated, see Plaintiffs’ Privilege Logs [D.E. 99], Ex. 6 at 1, Ex. 17 at 1, and Ex. 29 at 43; (2) one document that is designated as attorney work-product although it involves communications with City personnel, such as Thomas Mooney of the City’s Planning and Zoning Department and Gary Held, First Assistant City Attorney, see id., Ex. 15 at 25; and (3) one document that is claimed to be an attorney-client communication, although no attorney was involved in that communication, see id., Ex. 31 at 1. Such deficiencies, the City argues, “on their face bar an assertion of privilege.” (Motion at 7) (emphasis in original). *2 Flamingo concedes the email involving Thomas Mooney and Gary Held was improperly labeled as attorney work-product. Upon receipt of the City’s Motion, Flamingo produced the email to the City. As to the remaining documents, however, Flamingo argues those entries are not flawed. As to Ex. 6 at 1, Ex. 17 at 1, and Ex. 29 at 43, Flamingo advises those documents have a missing data field because “it was not apparent from the face of the document. The entries themselves indicate that the documents were ‘attorney handwritten notes of file review and document analysis’ or ‘attorney annotations’ that were either typed or hand-written.” (Pls.’ Memo. in Opp’n to Def.’s Mot. to Compel Production of Privileged Communications (“Memo. in Opp’n”) [D.E. 138] at 4 n.4). As to Ex. 31 at 1, Flamingo explains the redacted portions of this document were withheld as attorney-client privileged because those portions “disseminated legal advice from an attorney among the corporate control group involved with the Flamingo redevelopment.” (Id.). Flamingo asserts those redacted portions of the document relay legal advice, and as such, are privileged. See Se. Pa. Transp. Authority v. CaremarkPCS Health, L.P., 254 F.R.D. 253, 258 (E.D. Pa. 2008) (noting, “A document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds. When the client is a corporation, privileged communications may be shared by non-attorney employees in order to relay information requested by attorneys.”) (internal citations and quotations omitted). The defects noted by the City in Flamingo’s Privilege Logs are not sufficient grounds for the sweeping waiver claimed by the City. See Williams v. Taser Int’l, Inc., 1:06-CV-00051-RWS, 2008 WL 192991, at *3 (N.D. Ga. Jan. 22, 2008) (“Waiver of privilege is the most extreme sanction that a court can impose for failure to follow required procedure and courts should reserve it for cases of unjustifiable delay, inexcusable conduct, and bad faith in responding to discovery requests.”) (internal quotations and citation omitted). The majority of the entries in Flamingo’s Privilege Logs provide the date of the document, the author and recipient, the type of document and description of the content (though admittedly, sometimes vague), the privilege being asserted, and the sub-folder where the document may be found. For those documents missing some of this data, Flamingo has explained the information is not apparent from the face of those documents. And as to Ex. 31 at 1, while it is true that no attorney was involved in that communication, a document need not be authored by or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds, so long as that document relays legal advice to other officers of the corporation. See id. at 258-59; SmithKline Beecham Corp. v. Apotex Corp., 232 F.R.D. 467, 477 (E.D. Pa. 2005); Santrade, Ltd. v. General Elec. Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993). B. Waiver of Privilege The City also contends Flamingo waived its privilege by its conduct in this case. The City argues Flamingo’s causes of action are predicated upon an interpretation of “Condition 9,”[3] which, the City insists, requires an assessment of Flamingo’s knowledge and intent – namely, that of Lucia Dougherty, Esq. (“Dougherty”), counsel for Flamingo during the administrative process, and Bernard Zyscovich (“Zyscovich”), chief architect for the redevelopment property. The City insists by filing this suit, Flamingo placed the intent (or meaning) of Condition 9 and Flamingo’s knowledge of such intent at issue and as such, any evidence relating to this issue cannot be protected by the attorney-client or work-product privileges. Additionally, the City asserts Flamingo waived its attorney-client and work-product privileges as to Doughterty and Zyscovich through the following affirmative actions: (1) by naming Dougherty and Zyscovich as witnesses who will establish the meaning of Condition 9; (2) by allowing both Dougherty and Zyscovich to testify that Condition 9 required a private baywalk while simultaneously asserting privileges as to those communications during their depositions; (3) by attempting to use the testimony of Zyscovich and Dougherty to avoid the City’s statute of limitations defense; and (4) by making assertions for its benefit which it now claims cannot be questioned by the City. *3 The type of waiver being sought by the City “has been referred to as an ‘implied waiver’ or ‘at-issue waiver,’ ” Hays v. Equitex, Inc. (In re RDM Sports Group, Inc.), 277 B.R. 415, 437 (Bankr. N.D. Ga. 2002), and “ ‘the burden of establishing nonwaiver’ ” rests on the party seeking to assert a claim of privilege, Resolution Trust Corp. v. Massachusetts Mut. Life Ins. Co., 200 F.R.D. 183, 191 (W.D.N.Y. 2001) (quoting Granite Partners, L.P. v. Bear, Stearns & Co. Inc., 184 F.R.D. 49, 54 (S.D.N.Y. 1999)) – in this case, Flamingo. The theory of implied waiver was first enunciated in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975).[4] In that case, a prisoner brought a civil rights action against prison officials, who claimed immunity under the good faith immunity defense. The court found the defendants had implicitly waived the attorney-client privilege regarding issues of malice toward plaintiff or knowledge of his constitutional rights. In reaching that decision, the court determined the following factors needed to be met to show the privilege had been waived: (1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Id. at 581. i. At-issue Waiver Through the Filing of the Complaint Flamingo contends Counts I and II of the Complaint do not place Dougherty’s and Zyscovich’s knowledge and intent as to Condition 9 at issue. Count I seeks a declaration of Flamingo’s rights under the DRB Order. Flamingo maintains for purposes of Count I the intent of the City is irrelevant because that claim is predicated on the plain language of the DRB Order, Condition 9 in particular, and nothing else. Similarly, as to Count II, Flamingo contends “[t]he Nollan [and] Dolan test for exactions is an objective test[:] . . . [w]hether or not a rational nexus exists (Nollan) or whether an exaction is roughly proportional (Dolan) is entirely independent of whether or not any constitutional violation was intentional.” (Memo. in Opp’n at 7-8). Instead, Flamingo argues the City has injected intent into this matter by repeatedly asserting Plaintiffs’ knew what the City intended by Condition 9 and by affirmatively pleading its own good faith. *4 The filing of a declaratory action alone does not in and of itself waive the attorney-client and work-product privileges. See, e.g., Celotex Corp. v. Hillsborough Holdings Corp. (In re Hillsborough Holdings Corp.), 176 B.R. 223, 239-41 (M.D. Fla. 1994); Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 35 (D. Md. 1974). Rather, the party asserting the privilege must place information protected by the privilege at issue. See Pitney-Bowes, 86 F.R.D. at 447. This principle is well illustrated by Pitney-Bowes. In that case, plaintiff filed a lawsuit requesting a declaration of its rights and liabilities under certain contractual agreements. As part of its case, plaintiff asserted it had “intended to enter into modifications of pure patent licensing agreements.” Id. Defendant, however, argued the agreements were not limited to patent rights but instead encompassed trade secrets and prototypes, and thus, defendant sought to discover communications between plaintiff’s attorneys and executives that might reveal the true intent behind the agreements. In finding plaintiff had put intent at issue, the Pitney-Bowes court considered the fact defendant had not, noting that prior to the commencement of the litigation, defendant had sought arbitration of his royalty claims as per the apparent terms of the parties’ agreements, and not their intent. In Counts I and II of the Complaint, Flamingo does not ask the Court to consider the intent or knowledge of the parties who drafted Condition 9. Flamingo argues Claim I of the Complaint may be resolved by looking at the plain language of the DRB Order, and in a recent motion in limine, Flamingo sought to exclude extrinsic evidence, such as the parties’ intent, for purposes of interpreting Condition 9. (See Pls.’ Corrected Motions in Limine [D.E. 116] at 1-5). The City has injected intent into the matter in support of its statute of limitations and time bar defenses. (See Def.’s Mot. for Summ. J. [D.E. 106] ). ii. At-issue Waiver Through the Use of Dougherty and Zyscovich as Witnesses The City also contends Flamingo, by presenting Dougherty and Zyscovich as witnesses who will testify as to the parties’ understanding of Condition 9, has placed intent at issue and waived its privilege as to any evidence on this issue. Flamingo disagrees, arguing it listed Zyscovich and Dougherty in its Initial Disclosures “to preserve Plaintiffs [sic] ability to call Zyscovich and Dougherty if needed,” since the City, at that point, “had already clearly signaled that it would make intent an issue and [would] seek to introduce extrinsic evidence to support its current interpretation of Condition 9.” (Memo. in Opp’n at 9) (emphasis in original). Flamingo emphasizes it will rely on Zyscovich and Dougherty, if necessary, for discoverable, non-privileged information only. The mere listing of a witness or proffer of testimony does not waive the privilege. See, e.g., Celotex Corp., 176 B.R. at 239-41. “ ‘To waive the attorney client privilege by voluntarily injecting an issue in the case, [the party asserting a privilege] must do more than merely deny [the opposing party’s] allegations. The holder must inject a new factual or legal issue into the case.’ ” Mohawk Indus., Inc. v. Interface, Inc., No. 4:07-CV-0212-HLM, 2008 WL 5210386, at *8 (N.D. Ga. Sept. 29, 2008) (quoting Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987)). Admittedly, “[i]t is not necessary that [the party asserting a privilege] raise [a claim or] an affirmative defense in order to be found to have injected an issue into the case that requires disclosure of privileged materials.” Id. at *13. “Implicit disclosure can [also] occur when a holder partially discloses a confidential communication . . . or when a holder relies on a legal claim or defense, the truthful resolution of which will require examining confidential communications.” Lorenz, 815 F.2d at 1098 (internal citations omitted). By the same token, “[i]t cannot be possible for [a defendant] to justify breaching [a plaintiff’s] privilege by reason of its own pleading of an affirmative defense. That would give an adversary who is a skillful pleader the ability to render the privilege a nullity.” Chase Manhattan Bank N.A. v. Drysdale Sec. Corp., 587 F. Supp. 57, 59 (S.D.N.Y. 1984) (emphasis in original). See also Celotex Corp., 176 B.R. at 240 (declining to find waiver of privilege where affidavit by party asserting privilege was in response to position first advanced by party claiming waiver); Tribune, 1997 WL 10924, at *7. In Chase, for example, defendant sought access to communications from plaintiff’s legal department concerning plaintiff’s liability on a securities transaction to support its defense that plaintiff had been reckless. Plaintiff’s claim, however, was that it relied on defendant’s fraudulent opinion of a failed securities firm, which resulted in an extensive loss. In determining whether plaintiff had placed the issue of recklessness at issue by virtue of filing the lawsuit, thus requiring the disclosure of communications from plaintiff’s legal department, the court found *5 the possible ultimate allocation of the burden to [plaintiff] on the issue of recklessness [does not] justify present release of the communications to [defendant]. If, eventually, [plaintiff] does have the burden of persuading the trier of fact that it was not reckless, it may then choose to come forward with the proof it controls. Id. at 59 (emphasis in original). Here, Flamingo has proffered the testimony of Dougherty and Zyscovich in response to an issue injected by the City. And while that advice may be relevant, an attorney’s [a]dvice is not in issue merely because it is relevant, and does not necessarily become in issue merely because the attorney’s advice might affect the client’s state of mind in a relevant manner. The advice of counsel is placed in issue where the client asserts a claim or defense, and attempts to prove that claim or defense by disclosing or describing an attorney client communication. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) (citations omitted). Such a claim or defense is not present here. What neither Chase nor Rhone-Poulenc answers, and what the City contends is also at issue here, is what happens when the plaintiff does finally have the burden of persuading the trier of fact, for example, that it was not reckless, and the plaintiff chooses to use select privileged attorney-client communications or work-product in support of its position as to that issue.[5] Regardless of whether the plaintiff at that stage can be said to have injected a new fact or legal conclusion into the case, by disclosing otherwise privileged communications or by testifying as to those communications, “[a] waiver of the attorney-client privilege [ ] may occur.”[6] Mohawk Indus., 2008 WL 5210386, at *9 (citing Outside the Box Innovations, LLC v. Travel Caddy, Inc., 455 F. Supp. 2d 1374, 1376-77 (N.D. Ga. 2006)). As noted by the court in Tribune, [p]rivileges may also be waived when invoked in some fundamentally unfair way. Typically, this occurs where a litigant makes selective use of privileged materials, for example, by releasing only those portions of the material that are favorable to his position, while withholding unfavorable portions. . . . Depending upon the extent and context of the partial disclosure, the waiver may be broad, covering all communications relating to the subject matter of the disclosure, or narrow, covering only the remaining portions of the partially disclosed communications. 1997 WL 10924, at *5 (internal citations omitted). See also Bilzerian, 926 F.2d at 1292 (“A defendant may not use the privilege to prejudice his opponent’s case or to disclose some selected communications for self-serving purposes.”) (citation omitted); United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (“Selective disclosure for tactical purposes waives the privilege.”) (citation omitted). *6 The City argues Flamingo has invoked its attorney-client and work-product privileges in a fundamentally unfair way. Flamingo has proffered the testimony of both Dougherty and Zyscovich to prove Flamingo intended the baywalk to be private only and that Flamingo never knew the City intended the baywalk to be public. (See Pls.’ Initial Disclosures Under Rule 26(a) [D.E. 101-2] at 1 ¶1 and 2 ¶5). During their depositions, both Dougherty and Zyscovich were asked as to Condition 9, to which Zyscovich replied: Q. There was no discussion or did you receive any advice and counsel from Ms. Dougherty in regard to this particular condition 9, the bay walk extension? A. From our point of view it was a nonissue. Q. Your point of view being who? A. The entire group. Q. So the answer is no, there was no discussion or? A. That [sic] was not. Q. Or clarification? A. This was a nonissue throughout the whole process for us. Q. When you say the whole process, what are you talking about? A. I am saying there was never, ever a discussion, that I can recall that the bay walk that we’re showing on our property would be public . . . . (Deposition of Bernard Zyscovich (“Zyscovich Dep.”) [D.E. 102-8] 118:15-119:7). Testimony from Dougherty was in complete accord: Q. On Page 5 is a condition of development, No. 9. It says, “A baywalk extension from the south side of the property north into the future park area shall be required.” The same recommendation that is now a condition. * * * Q. And, again, this says, “a baywalk extension from the south side of the property north into the future park.” Is it, again, your opinion that that means a private baywalk behind the Flamingo? MR. ADAMS: Objection to form. THE WITNESS: Yes. (Deposition of Lucia Dougherty (“Dougherty Dep.”) [D.E. 102-6] 110:23-111:2, 111:11-17). But when the City sought to cross-examine Dougherty and Zyscovich further on this information, attorney-client privileges were asserted. Upon a careful re-reading of those portions of the depositions cited by the City, the Court is not convinced Flamingo has asserted attorney-client and work-product privileges in a fundamentally unfair way. Those portions of Dougherty’s and Zyscovich’s testimony, to which the City cites as evidence of Flamingo’s selective use of privileged communications, do not reveal attorney-client communications. Zyscovich’s deposition confirms there was never a discussion between the “entire group” – a term which was never sufficiently defined – as to whether the baywalk would be public; Zyscovich never answers whether he received any advice and counsel from Ms. Dougherty with regard to Condition 9 – presumably the communication that would be protected by the attorney-client privilege. Likewise, Dougherty’s deposition reveals it was her opinion that Condition 9 required a private baywalk but it does not reference any communications with Flamingo regarding that opinion. By contrast, those portions of the depositions to which attorney-client privileges were asserted sought specifically to discover communications that would be protected by the attorney-client privilege. Dougherty was asked: Q. Is that what you told your clients? MR. ADAMS: Objection, privileged. Instruct the witness not to answer. It was a confidential, privileged communication. * * * Q. Did you have a discussion with anyone at Aimco or Bernard Zyscovich about what that condition meant? MR. ADAMS: Same objection and instruction. MR. DIMOND. Same instruction. * * * Q. Did you get together in a meeting and agree that that meant that a private baywalk or a private walkway behind your property? The Flamingo? *7 MR. ADAMS: Same objection. MR. DIMOND: Same objection. (Dougherty Depo. 111:19-112:10). Similarly, during Zyscovich’s deposition, privilege was raised when the questions reached attorney-client and work-product privileges: Q. Did you meet with Ms. Dougherty and discuss issues regarding the strategy for the presentation you would make to the Design Review Board? A. Yes. Q. And what did you discuss about the strategy that you would employ to confront the issues raised by Mr. Steffens that were raced [sic] by Alex David? MR. MUNIZ: I will object and assert the privilege there to the extent that he discussed those strategies and developed them with Ms. Dougherty. Q. Did you question Ms. Dougherty about the [sic] or ask her to investigate the Arquitectonica or Floridian projects? MR. MUNIZ: Objection, privilege. Q. Did you discuss with her the intent that Mr. David had expressed about connecting the entire bay walk, a pedestrian path across the entire bay front? MR. MUNIZ: Same objection. Q. Did you discuss with Ms. Dougherty or anyone at AIMCO these issues? MR. MUNIZ: Object to the form and I will state, restate the objection that to the extent that question reaching [sic] attorney-client communications and advice of counsel, I will assert the privilege. To the extent that you can answer that question without referring to any attorney-client communications, or attorneys[’] advice then you may answer the question. (Zyscovich Dep. 141:10-142:18). To invoke Cox’s theory of implied waiver – that is, that a privilege may not be used as both a shield and a sword – the party asserting the privilege must be shown to have “reveal[ed] part of a privileged communication to gain an advantage in litigation.” Jones, 696 F.2d at 1072 (citing In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982)). Those portions of Dougherty’s and Zyscovich’s depositions cited by the City do not evidence such actions by Flamingo here. The Court continues to be of the view that the City is entitled to request that Flamingo produce all evidence heretofore withheld as privileged for in camera review, given that it is Flamingo’s burden to prove both privilege and non-waiver, see Granite Partners, 184 F.R.D. at 54, and over 350 pages of privilege-based objections to documentary evidence solicited by the City and over 100 privilege-based objections, lodged during the depositions of Dougherty and Zyscovich, remain to be reviewed. In accordance with the foregoing, it is ORDERED AND ADJUDGED as follows: 1. The City’s Motion [D.E. 101] is GRANTED in part. 2. The parties need not submit a proposed order as instructed in the August 3, 2009 Order [D.E. 195], as this Order will also cover those documents withheld by the City on grounds of privilege which were the subject of Plaintiff’s Motion to Compel [D.E. 161]. 3. The parties shall submit records withheld as privileged for in camerareview by the Special Master appointed herein, in order for the Special Master to provide the Court with a report concerning the number of records which pertain to the matters at issue in this lawsuit, including the defenses raised by the City. The report should make recommendations concerning documents the parties should be entitled to review, including recommendations related to any appropriate time frame limitations. *8 4. Appointment. Barbara Ehrich Locke, Esq., Ehrich Locke Law, P.A., 6619 South Dixie Highway, No. 245, Miami, Fl. 33143 ((305) 662-2994) (www.elockelaw.com), is hereby appointed under Rule 53 as Special Master for the purpose of reviewing any and all documents previously withheld (a) on the basis of any alleged privilege; or, (b) the categories of documents on privilege logs which fail to inform the other party as to what was withheld. The Special Master shall commence reviewing the withheld documents in chronological order, in the manner determined by the Special Master to be most efficient, and provide a report as soon as practicable. 5. Procedures. The Master shall have the rights, powers, and duties as provided in Rule 53 and may adopt such procedures as are not inconsistent with that rule or with this or other orders of the Court. Within three (3) business days of the appointment of the Special Master, the parties shall produce their privilege logs and all withheld documents to the Special Master, absent written stipulation of the parties concerning a narrower range of documents that may be appropriate for the purposes of this order. 6. Reports. The Special Master shall make findings of fact and conclusions of law with respect to the matters presented by the parties and report expeditiously to the Court pursuant to Rule 53(e). Unless directed by the Court or believed advisable by the Master, the report shall not be accompanied by a transcript of the proceedings, the evidence, or the exhibits. Such parts of the report, if any, as may be confidential shall be filed under seal pending further order of the Court. 7. Fees and Expenses. Compensation at rates mutually agreeable to the Special Master and the parties shall be paid to the Special Master on a periodic basis by the parties, together with reimbursement for reasonable expenses incurred by the Special Master. The Special Master may employ other persons to provide clerical and secretarial assistance; such persons shall be under the supervision and control of the Special Master, who shall take appropriate action to insure that such persons preserve the confidentiality of matters submitted to the Special Master for review. The cost of the Special Master’s review and report shall be borne equally by the parties, subject to any appropriate re-allocation at the conclusion of the case depending on the outcome or depending on the Special Master’s findings. DONE AND ORDERED in Chambers at Miami, Florida this 6th day of August, 2009. Footnotes [1] Local Rule 26.1 G 3(b) provides Where a claim of privilege is asserted in objecting to any interrogatory or production demand, or sub-part thereof, and an answer is not provided on the basis of such assertion: (i) The attorney asserting the privilege shall in the objection to the interrogatory or document demand, or subpart thereof, identify the nature of the privilege (including work product) which is being claimed and if the privilege is being asserted in connection with a claim or defense governed by state law, indicate the state’s privilege rule being invoked; and (ii) The information shall be provided in the objection, unless divulgence of such information would cause disclosure of the allegedly privileged information: (A) For documents or electronically stored information, to the extent the information is readily obtainable from the witness being deposed or otherwise: (1) the type of document (e.g., letter or memorandum) and, if electronically stored information, the software application used to create it (e.g., MS Word, MS Excel Spreadsheet); (2) general subject matter of the document or electronically stored information; (3) the date of the document or electronically stored information; and (4) such other information as is sufficient to identify the document or electronically stored information for a subpoena duces tecum, including where appropriate, the author, addressee, and any other recipient of the document or electronically stored information, and, where not apparent, the relationship of the author, addressee, and any other recipient to each other[.] * * * S.D. Fla. Local R. 26.1 G 3(b). [2] In Section IV of the Order, Judge Brown stated: Generalized objections asserting “confidentiality,” attorney-client privilege or work product doctrine also do not comply with local rules. Local Rule 26.1 G 3(b) requires that objections based upon privilege identify the specific nature of the privilege being asserted, as well as identifying such things as the nature and subject matter of the communication at issue, the sender and receiver of the communication and their relationship to each other, among others. (Order on Discovery at 2). [3] Condition 9 is one of the conditions found in a development approval order dated December 2, 1997 (“DRB Order”). [4] Where, as is the case here, there is a federal question with attendant state claims, the federal law of privilege applies. See, e.g., Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir. 1992) (“We therefore hold that the federal law of privilege [applies] . . . where the court’s jurisdiction is premised upon a federal question, even if the witness-testimony is relevant to a pendent state law count . . . .”). Courts in this district have adopted a similar three-factor test to determine whether a privilege has been waived, see Stern v. O’Quinn, 253 F.R.D. 663, 676 (S.D. Fla. 2008), and have held that “ ‘where these three conditions exist, a court should find that the party asserting a privilege has impliedly waived it through his own affirmative conduct,’ ” Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 447 (S.D. Fla. 1980)(quoting Hearn, 68 F.R.D. at 581)). “The ‘at-issue’ waiver applies both to the attorney-client and work-product privileges.” Resolution Trust, 200 F.R.D. at 192 (citing Tribune Co. v. Purcigliotti, No. 93 CIV. 7222 LAP THK, 1997 WL 10924, at *6 (S.D.N.Y. 1997)). In light of the conclusion reached as to the first two factors, the Court does not address the third. [5] The Court has already determined that “[b]ecause the language of the DRB Order is ambiguous, the Court may consider external circumstances related to approval of the Site Plan to determine the meaning of Condition 9.” (Order on Motion to Dismiss [D.E. 59] at 14; see also Omnibus Order [D.E. 196] at 10). And, as the City argues, external circumstances may include Flamingo’s – or specifically, Dougherty’s and Zyscovich’s – knowledge of the intent of both Flamingo and the City as to the DRB Order and Condition 9. [6] The United States Court of Appeals for the Eleventh Circuit has observed that “the doctrine of waiver by implication reflects the position that [ ] privilege [i]s intended as a shield, not a sword.” Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1417 (11th Cir. 1994) (internal quotations and citations omitted). “ ‘A defendant may not use the privilege to prejudice his opponent’s case or to disclose some selected communications for self-serving purposes.’ ” Id. (quoting United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) (alterations in original).