Commure, Inc. v. Canopy Works, Inc.

Background

Commure and Canopy were parties to a 2022 reseller agreement concerning Canopy’s Strongline safety solution. East Alabama Health Care Authority was a customer. After disputes arose between Commure and Canopy, Commure sued Canopy in April 2024 under federal and state law.

During discovery, Commure subpoenaed documents from East Alabama Health Care Authority. The customer produced a February 27, 2024 email exchange that included the document at issue, and Commure provided the customer’s production to Canopy. Neither Commure nor the customer redacted the documents, designated them confidential, or provided a privilege log asserting protection.

The parties agreed that the document prepared by Commure’s General Counsel qualified for attorney work-product protection. That doctrine generally protects materials prepared by or for a party in anticipation of litigation. The dispute concerned only whether Commure waived that protection by disclosing the document to East Alabama Health Care Authority.

Parties’ Arguments

Commure argued that the document was shared under a confidentiality provision in its subscription agreement with East Alabama Health Care Authority, or at least with a reasonable expectation that the customer would keep it confidential. Commure also argued that the parties shared business and legal interests.

Canopy argued that the protection was destroyed when Commure forwarded the document to East Alabama Health Care Authority. Canopy characterized the relationship as an ordinary arms-length commercial relationship and argued that the customer had no legal obligation to keep the document confidential.

Court’s Analysis

The court concluded that Commure voluntarily waived work-product protection. First, it found that Commure’s disclosure was intentional rather than inadvertent. Second, the court found that Commure did not take reasonable steps to protect the General Counsel’s work product. The record did not show that East Alabama Health Care Authority had a legal interest in common with Commure, and the court found that Commure had not shown that the subscription agreement’s confidentiality provision applied to the shared document.

The court also found that Commure took no steps to have East Alabama Health Care Authority return or destroy the document, or even to confirm that the customer would treat it as confidential. The disclosure was therefore made in a manner likely to substantially increase potential adversaries’ opportunities to obtain the work product.

Ruling and Disposition

The court held that Commure waived work-product protection for the document disclosed to East Alabama Health Care Authority. The waiver extends to the February 27, 2024 email exchange that includes the shared document, but not beyond. The court ordered Commure to produce the document attached as Exhibit A to the discovery-dispute letter to Canopy without redactions by May 13, 2025.