High Point Sarl v. Sprint Nextel Corporation et al

Filing 883

MEMORANDUM AND ORDER denying 836 Sprint's Motion to Compel Avaya, Inc. to Produce Withheld Documents No Longer in Dispute and For Special Master Review of Certain Privilege Log Entries. Signed by Magistrate Judge David J. Waxse on 12/4/2012. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HIGH POINT SARL,
Plaintiff and
Counterclaim Defendant,
CIVIL ACTION
v.
Case No. 09-2269-CM-DJW
SPRINT NEXTEL
CORPORATION, et al.,
Defendants and
Counterclaimants.
MEMORANDUM AND ORDER
This matter is before the Court on Sprint’s Motion to Compel Avaya, Inc. to Produce
Withheld Documents No Longer in Dispute and For Special Master Review of Certain Privilege Log
Entries (ECF No. 836). Since the motion was filed, Sprint1 and interested party Avaya Inc.
(“Avaya”) resolved two of the three disputes at issue in Sprint’s motion. The only remaining issue
before the Court is Sprint’s request for an order compelling Avaya to submit all documents from its
privilege logs, other than foreign patent prosecution documents, that have not already been provided
to the Special Master for an in camera review. As explained below, Sprint’s request is denied.
The facts leading up the present dispute have been set forth in at least two prior opinions.2

1

Defendants 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.”
2

See High Point SARL v. Sprint Nextel Corp., No. 09-2269-CM, 2012 WL 234024, at *1-2
(D. Kan. Jan. 25, 2012) on reconsideration in part, 2012 WL 1580634 (D. Kan. May 4, 2012); High
Point SARL v. Sprint Nextel Corp., No. 09-2269-CM, 2012 WL 5306268, at *1-2 (D. Kan. Oct. 29,
2012).

Highly summarized, the Court referred to the Special Master the task of conducting an in camera
review of two categories of Avaya’s documents identified on its privilege logs. During the Special
Master’s review, he noted many inaccuracies on Avaya’s privilege logs. Sprint now seeks an order
for the Special Master to review in camera—at Avaya’s cost—all the remaining documents Avaya
is withholding on the basis of privilege except for those solely regarding foreign patent prosecutions.
The Court denies Sprint’s request. Since Sprint filed its motion raising the issue, Avaya has
made several efforts to address Sprint’s concerns with regard to the accuracy of Avaya’s privilege
logs. Avaya states in its response (ECF No. 870) that it has undertook an extensive and expensive
review of the remaining entries of the privilege logs to effectuate the principles elaborated by this
Court and applied by Special Master Bayer to confirm the validity of its remaining assertions of
privilege. By its count, it has re-reviewed 1,326 privilege log entries, produced 262 privilege log
entries in full, and made a partial production of other documents within 140 other privilege log entry
families. Based upon these representations, the Court finds that Avaya has made sufficient
additional efforts to address Sprint’s concerns with the accuracy of its privilege logs. At this point,
the Court sees no need to incur the significant additional costs for the Special Master to conduct an
in camera review of Avaya’s remaining documents that are being withheld as privileged.
IT IS THEREFORE ORDERED THAT Sprint’s Motion to Compel Avaya, Inc. to
Produce Withheld Documents No Longer in Dispute and For Special Master Review of Certain
Privilege Log Entries (ECF No. 836) is denied.
IT IS FURTHER ORDERED THAT Sprint and Avaya shall bear their own costs related
to this motion.
IT IS SO ORDERED.

2

Dated in Kansas City, Kansas on this 4th day of December 2012.

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

3