Sprint Communications Company L.P. v. WideOpenWest, Inc., et al
MEMORANDUM ORDER: Regarding assertion that privileged documents are being withheld. I will exclude testimony by Mr. Mitchell and Mr. Martin regarding company beliefs and "folklore" unless Defendants within one week disclose privilege log entries 8, 20, 33, 35, and 41-44. Signed by Judge Richard G. Andrews on 1/19/2023. (nms)
Case 1:18-cv-00361-RGA Document 460 Filed 01/19/23 Page 1 of 2 PageID #: 24875
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SPRINT COMMUNICATIONS COMP ANY
Civil Action No. 18-361-RGA
WIDEOPENWEST, INC., et al.,
The issue before me is "Sprint' s assertion that WOW is withholding privileged
documents that are allegedly inconsistent with WO W ' s belief that it would not be sued by
Sprint." (D.I. 454 at 1). I held a pretrial conference for this case on October 25, 2022. While
arguing for its second motion in limine (D.I. 433), Plaintiff Sprint raised the issue of certain
privileged communications. (10/25/2022 Hr. Tr. at 32:17-25). Plaintiffs second motion in limine
sought to exclude testimony about company "folklore" regarding a right to practice Sprint's
patents. Defendants plan to assert the affirmative defense of implied license, supported by this
"folklore" testimony from WOW' s Rule 30(b)(6) designee, Mr. Mitchell, and general counsel,
Mr. Martin. I determined that the folklore testimony would be admissible for the limited purpose
of showing WO W's subjective belief, which I believed was a component of the implied license
defense. (10/25/2022 Hr. Tr. at 25:18-26:2). However, Sprint is concerned that WOW is using
privilege to withhold documents relevant to Mr. Martin' s and Mr. Mitchell's beliefs that might
undercut WOW' s position. Sprint argues that this is "a classic sword and shield problem." (D.I.
454 at 2-3).
Case 1:18-cv-00361-RGA Document 460 Filed 01/19/23 Page 2 of 2 PageID #: 24876
In their letters and at the pretrial conference, the parties identified the following privilege
log entries as being at issue: 6-8, 16, 20, 33, 35, and 41 -45. 1 (D.I. 453). Defendants did not
submit entry 45. I have reviewed the other identified documents. Some of them are not relevant
to the present dispute. Some, however, do speak to Mr. Martin's beliefs regarding the possibility
of suit by Sprint. Therefore, I will exclude testimony by Mr. Mitchell and Mr. Martin regarding
company beliefs and "folklore" unless Defendants within one week disclose privilege log entries
8, 20, 33, 35, and 41-44.
IT IS SO ORDERED.
Entered this ~
ay of January, 2023
Plaintiff also indicates in a footnote that it is "concerned" about some additional documents
claimed to be privileged. (D.I. 454 n. 1). I do not consider "concerns" (and especially not
"concerns" described in a footnote) to raise any issue that I need to resolve. Therefore, I did not
review these additional documents.
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