High Point Sarl v. Sprint Nextel Corporation et al

Filing 790

MEMORANDUM AND ORDER granting 734 High Point's Motion for Partial Reconsideration of January 25, 2012 Order; granting 736 Avaya Inc.'s Motion for Reconsideration of the Court's January 25, 2012 Order; and denying 764 Sprint 9;s Motion for Leave to File Surreply. With 20 days of the date of this Memorandum and Order, Avaya may submit its document identified as privilege log entry 475 to the Special Master for an in camera review rather than producing it Sprint forthwith. Signed by Magistrate Judge David J. Waxse on 5/4/2012. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HIGH POINT SARL,
Plaintiff and Counterclaim
Defendant,
v.
SPRINT NEXTEL
CORPORATION, et al.,
Defendants and
Counterclaimants.

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CIVIL ACTION
Case No. 09-2269-CM-DJW

MEMORANDUM AND ORDER
This matter is before the Court on the following motions: Avaya Inc.’s Motion for
Reconsideration of the Court’s January 25, 2012 Order (ECF No. 736), High Point’s Motion for
Partial Reconsideration of January 25, 2012 Order (ECF No. 734), and Sprint’s1 Motion for Leave
to File Surreply (ECF No. 764). Third party Avaya Inc. (“Avaya”) and plaintiff High Point SARL
(“High Point”) seek reconsideration of a limited portion of the Court’s January 25, 2012
Memorandum and Order that ordered Avaya to produce a certain document identified on its
supplement privilege logs. Specifically, they request that the Court reconsider its order to the extent
it requires Avaya to produce the document identified as privilege log entry 475, and instead allow
Avaya to submit the document for an in camera review by the special master. As explained below,
the motions for reconsideration are granted and Avaya may submit its document identified as
privilege log entry 475 to the special master for an in camera review rather than producing it.
1

Sprint Nextel Corporation; Sprint Spectrum L.P.; SprintCom, Inc.; Sprint Communications
Company L.P.; Sprint Solutions, Inc.; APC PCS, LLC; APC Realty and Equipment Company, LLC;
and STC Two LLC are collectively referred to as “Sprint.”

Sprint’s motion for leave to file a surreply is denied.
I.

Motions for Reconsideration
A.

Standard for Ruling on a Motion for Reconsideration

Although the Federal Rules of Civil Procedure do not provide for motions for
reconsideration,2 the District of Kansas has promulgated a local rule, D. Kan. Rule 7.3(b), that
allows a party to file a motion asking a judge or magistrate judge to reconsider an order or decision.
Under D. Kan. Rule 7.3(b), motions seeking reconsideration of non-dispositive orders must be based
on “(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need
to correct clear error or prevent manifest injustice.” Whether to grant or deny a motion for
reconsideration is committed to the court’s discretion.3
A motion to reconsider is not a second chance for the losing party to ask the court to revisit
issues already addressed or to consider new arguments and supporting facts that could have been
presented originally.4 Nor is a motion to reconsider to be used as “a second chance when a party
has failed to present it strongest case in the first instance.”5 Improper use of motions to reconsider
can waste judicial resources and obstruct the efficient administration of justice.6 Reconsideration

2

See Hatfield v. Bd. of Cnty. Comm’rs for Converse Cnty., 52 F.3d 858, 861 (10th Cir. 1995)
(“The Federal Rules of Civil Procedure recognize no ‘motion for reconsideration.’”).
3

Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988).

4

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).

5

Steinert v. Winn Grp., Inc., No. 98-2564-CM, 2003 WL 23484638, at *2 (D. Kan. Sept. 24,
2003) (quoting Prairie Band Potawatomi Nation v. Richards, No. 99-4071-JAR, 2003 WL
21536881, at *1 (D. Kan. July 2, 2003)).
6

Resolution Trust Corp. v. Williams, 165 F.R.D. 639, 642 (D. Kan. 1996) (quoting United
States ex rel. Houck v. Folding Carton Admin. Comm., 121 F.R.D. 69, 71 (N.D. Ill. 1988)).
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may, however, be appropriate “where the court has misapprehended the facts, a party’s position, or
the controlling law.”7
B.

The Court’s January 25, 2012 Memorandum and Order

The Court’s January 25, 2012 Memorandum and Order ordered Avaya to produce certain
documents identified on its privilege logs, and to submit numerous other documents Avaya claimed
were protected by the attorney-client privilege to the special master for an in camera review. As
part of its ruling, the Court ordered Avaya to produce the document identified as entry 475 on its
supplemental privilege log for its July 2, 2010 document production. Avaya’s privilege log entry
475 indicated that the documents was authored by a non-attorney, Ian Bashaw, patent licensing
directory of Avaya’s IP Law Group, and had been sent to “File.” The log also stated that the
document was attorney-client privileged because it was a “[c]onfidential draft referring to
information gathered at the request of counsel for the purpose of providing legal advice regarding
potential patent assignment.”
Based upon the information provided in Avaya’s supplemental privilege log, along with
Avaya’s representations in its briefing to Sprint’s motion to compel, the Court found that Avaya
failed to establish that the document identified by entry 475 constituted a communication protected
under the attorney-client privilege, and Avaya would have to produce the document.
C.

Grounds Asserted in Support of Reconsideration

Avaya and High Point ask the Court to reconsider its order compelling Avaya to produce the
document identified as privilege log entry 475. They argue that reconsideration is appropriate based
on the availability of new evidence and the need to prevent manifest injustice.
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Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
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1.

Availability of New Evidence

Avaya and High Point first argue that reconsideration is warranted due to newly discovered
evidence. While complying with the Court’s order, Avaya’s counsel learned for the first time from
High Point’s counsel that the document identified as privilege log entry 475 contained confidential
common interest communications that counsel for High Point’s parent Inpro disclosed to Avaya’s
counsel during the negotiations between these companies. Upon learning this new information from
High Point’s counsel, Avaya investigated and discovered that rather than a memorandum to “File,”
as denoted on the privilege log, entry 475 was in actuality a draft of a privileged attorney-client
email from Ian Bashaw, the licensing director of the Avaya IP Law Group, to Christopher Ricci, one
of Avaya’s in-house attorneys. According to Avaya, the email communicates privileged information
Inpro (High Point’s parent company) provided to Mr. Bashaw for communication to Avaya’s inhouse counsel. Privilege log entry 475 is described by Avaya as the near final draft of an email that
Mr. Bashaw sent to Avaya’s in-house counsel the following day. That email is logged as privilege
log entry 476 and was not ordered produced. Given the erroneous information contained in Avaya’s
privilege log, and the Court’s reliance on that information, Avaya and High Point request that the
Court reconsider its ruling and allow Avaya to submit privilege entry 475 to the special master for
in camera inspection instead of outright production.
Sprint argues that neither High Point nor Avaya present the Court with any compelling basis
for reconsideration of the order requiring production of entry 475 on Avaya’s supplemental privilege
log. They have failed to present proper, sufficient evidence in support of their motions, let alone
any evidence that could truly be considered “new.”

Sprint asserts that the motions for

reconsideration are yet another improper attempt to relitigate issues repeatedly briefed and already
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decided by the Court.
The Court does not find that Avaya’s later discovering that its privilege log contained errors
– after being ordered by the Court to produce documents identified on its logs – falls within the
realm of “new evidence,” as contemplated by D. Kan. Rule 7.3(b). Avaya obviously had access to
the document, which contained all the pertinent information needed for asserting any privilege, at
the time it prepared the original privilege log and supplemental privilege log. Avaya also had access
to the document at the time it made further extensive representations to the Court in its response to
Sprint’s motion to compel production of privilege log entry 475. Avaya’s realization of its mistake
on its supplemental privilege log does not constitute newly discovered evidence to be used as a basis
for reconsideration of a non-dispositive discovery order. Avaya and High Point fail to convince the
Court that reconsideration is justified based upon the availability of new evidence.
2.

Prevent Manifest Injustice

Avaya and High Point also invoke the third grounds for reconsideration of a non-dispositive
order under D. Kan. R. 7.3(b), i.e., the need to correct clear error or prevent manifest injustice. They
argue that it would be manifestly unjust for the Court not to permit Avaya to make privilege entry
475 available to the special master for an in camera inspection. This outcome is particularly
appropriate under these circumstances where Avaya is not a party to this action and it has expended
a significant amount of resources trying to comply with Sprint’s subpoena, while properly detailing
over 1000 documents on its privilege log. Avaya’s efforts in this case have demonstrated appropriate
diligence.
Avaya is a subpoenaed third party to this action. After being subpoenaed by Sprint, it
submitted its privilege logs identifying thousands of documents as privileged. The Court has already
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ordered Avaya to produce numerous documents to the special master for the purpose of conducting
an in camera review of those documents for attorney-client privilege. The Court notes that the
special master has completed his in camera inspection of the other Avaya documents and recently
filed his Report and Recommendation (ECF No. 786) on Avaya’s privileged documents.
In light of these circumstances, Avaya and High Point have convinced the Court that it would
be manifestly unjust to require Avaya to produce privilege entry 475 based upon an inadvertent
error in its privilege log, especially when the Court has already ordered the special master to conduct
an in camera review of many other Avaya documents that Avaya claims are protected by attorneyclient privilege. Given the importance of the attorney-client privilege and the Court’s policy of
deciding issues upon the merits rather than on technicalities, the Court will grant reconsideration of
its ruling as to privilege entry 475 and allow Avaya to submit the document to the special master for
an in camera inspection rather than producing it outright. The Special Master will then determine
whether the document should be produced or retained by Avaya.
Sprint also raises the issue of whether High Point has standing to file a motion to reconsider
when the Court’s order directed Avaya to produce documents. Sprint argues that High Point does
not have standing to seek reconsideration of the January 25, 2012 Order. Here, the Court concludes
that it need not decide the issue of whether High Point must have standing to file a motion to
reconsider an order that only directed third party Avaya to produce documents, because the Court
is granting Avaya’s motion for reconsideration, which is essentially requesting the same relief as
High Point’s motion. In any event, even if the Court were to require High Point to show standing
to file a motion to reconsider the January 25, 2012 Order, High Point has shown that it has an
interest in the document at issue by arguing that it contains a common interest privileged
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communication with its parent company regarding the patents-in-suit.
Accordingly, Avaya and High Point’s motions for reconsideration are granted, and Avaya
may submit its document identified as privilege log entry 475 to Special Master Karl Bayer for an
in camera review rather than producing it.
II.

Sprint’s Motion for Leave to File Surreply to Motions for Reconsideration
After the motions to reconsider were fully briefed, Sprint filed a motion for leave to file a

surreply. Sprint asserts that it should be permitted to file a surreply to rebut High Point and Avaya’s
assertions that Avaya’s privilege log entry 475 was the inadvertent mislogging of a single document.
Sprint claims that it has now reviewed documents that Avaya produced from its log, and a review
of the documents produced shows that there are repeated and prevalent flaws with the logs to show
that the mislogging of entry 475 was not an isolated event.
High Point and Avaya oppose Sprint’s motion to file a surreply. They argue that Sprint has
not demonstrated good cause to justify filing a surreply. Sprint improperly characterizes its surreply
as a response to a purportedly “new” argument in High Point and Avaya’s reply briefs, but in reality,
the surreply challenges the propriety of entries on Avaya’s privilege log entirely unrelated to the
document at issue, relies entirely on information that was available to Sprint before it responded to
High Point and Avaya’s motions, rehashes arguments that Sprint has repeatedly made to this Court
about the adequacy of Avaya’s privilege logging, and is nothing more than a transparent attempt to
have the last word. Avaya further argues that Sprint’s assertion that Avaya introduced a new
argument in its reply is misleading and completely unfounded.
District of Kansas Local Rule 7.1(c) only mentions the filing of a response or reply to a
motion; it does not mention a surreply. In general, a surreply is not customary and normally is not
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allowed.8 Instead, an opposed surreply is allowed only with permission of the court under rare
circumstances.9 One such circumstance is when new arguments or materials are raised for the first
time in a reply brief.10 If such new argument or information is included, it is proper for the court to
give the nonmoving party an opportunity to respond by allowing the party to file a surreply.11
The Court finds that a surreply to the motions to reconsider is not warranted here. Although
Avaya and High Point did not expressly assert that the alleged incorrect logging of privilege log
entry 475 was an single, isolated event until they filed their reply briefs, it was clear from their
motions for reconsideration that Avaya was claiming the inadvertently mislogging of entry 475 as
a reason for the Court to reconsider its ruling. Sprint had an opportunity to file a response, which
it did, rebutting Avaya and High Point’s assertions relating to the logging of entry 475, the only
entry at issue in the motions to reconsider. Further, a review of Sprint’s proposed surreply shows
that it challenges the propriety of several other entries on Avaya’s privilege log unrelated to entry
475, and rehashes arguments that Sprint already made in its response with regard to the adequacy
of Avaya’s privilege log. Other than asserting that the mislogging of entry 475 was an isolated
event, Avaya and High Point did not raise any other new arguments or point to any new evidence
for the first time in their reply briefs that would otherwise justify Sprint filing a surreply. Sprint’s
motion for leave to file a surreply to the motions for reconsideration is therefore denied.

8

Taylor v. Sebelius, 350 F. Supp. 2d 888, 900 (D. Kan. 2004); Metzger v. City of Leawood,
144 F. Supp. 2d 1225, 1266 (D. Kan. 2001).
9

See Humphries v. Williams Natural Gas Co., No. 96-4196-SAC, 1998 WL 982903, at *1
(D. Kan. Sept. 23, 1998). This is especially true when the request for surreply is opposed.
10

Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005).

11

Id.
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IT IS THEREFORE ORDERED that Avaya Inc.’s Motion for Reconsideration of the
Court’s January 25, 2012 Order (ECF No. 736) and High Point’s Motion for Partial Reconsideration
of January 25, 2012 Order (ECF No. 734) are granted. With 20 days of the date of this
Memorandum and Order, Avaya may submit its document identified as privilege log entry 475
to the Special Master for an in camera review rather than producing it Sprint forthwith.
IT IS FURTHER ORDERED that Sprint’s Motion for Leave to File Surreply (ECF No.
764) is denied.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 4th day of May, 2012.

s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge

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