Attorneys – Attorney-Client Privilege – Civil Practice – Discovery – Common Interest Doctrine – Asset Sale – Indemnity Clause – Landlord/Tenant – Commercial Lease

Friday Investments, LLC v. Bally Total Fitness of the Mid-Atlantic, Inc. (Lawyers Weekly No. 011-181-16, 18 pp.) (Lucy Inman, J.) Appealed from Mecklenburg County Superior Court (Jesse Caldwell III, J.) N.C. App.

Holding: When non-party Blast Fitness Group bought defendants’ assets, Blast agreed to indemnify defendants for losses related to the lease between the plaintiff-landlord and defendants. This business arrangement does not mean Blast and defendants share a common legal interest; therefore, defendants’ communications with Blast are not protected by attorney-client privilege.

We affirm the trial court’s denial of defendants’ motion for a protective order and the court’s grant of plaintiff’s motion to compel production.

Plaintiff requested production of defendants’ non-privileged correspondence with anyone about the lease. Defendants did not waive any applicable attorney-client privilege when they failed to object to this request.

When faced with a specific request for their communications with Blast, defendants promptly asserted the attorney-client privilege. Therefore, defendants properly asserted the privilege, and this interlocutory appeal affects a substantial right of defendants. Plaintiffs’ motion to dismiss is denied.

However, where defendants (1) failed to ask the trial court to seal the records for appellate review, (2) did not move this court to order the records be sent from the trial court, and (3) filed their motion to submit the documents under seal several days after plaintiff submitted its brief, defendants’ motion is denied. To allow these documents to enter the record after briefing would be unfairly prejudicial to plaintiff. As a result, we will review the trial court’s decision for abuse of discretion, rather than undertaking a de novo review.

The common interest doctrine extends the attorney-client privilege to communications between and among multiple parties sharing a common legal interest. Arrangements between two or more parties to obtain legal counsel for a shared legal purpose are known as “tripartite” attorney-client relationships.

The linchpin of any analysis of a tripartite attorney-client relationship is the finding of a common legal interest among the attorney, client and third party. Neither this court nor our Supreme Court has extended the common interest doctrine to relationships formed primarily for purposes other than indemnification or coordination in anticipated litigation.

Defendants and Blast share a common business interest as opposed to the common legal interest necessary to support a tripartite attorney-client relationship. Consequently, the trial court did not abuse its discretion in compelling defendants to produce their communications with Blast.

Affirmed.