Sprint Communications Company L.P. v. Comcast Cable Communications, LLC et al
MEMORANDUM AND ORDER - It is ordered that defendants' objections (Doc. # 1115 ) to the Magistrate Judge's Order of February 23, 2017, are hereby overruled. Comcast shall produce the documents to Sprint as ordered by the Magistrate Judge (and as clarified herein) on or before March 2, 2017. Signed by District Judge John W. Lungstrum on 03/01/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
COMCAST CABLE COMMUNICATIONS
LLC, et al.,
Case No. 11-2684-JWL
MEMORANDUM AND ORDER
This case comes before the Court on Comcast’s1 objections (Doc. # 1115) to the
Order of February 23, 2017, in which the Magistrate Judge ruled that Comcast had
waived the attorney-client privilege for certain subjects and ordered Comcast to produce
certain documents. The Court overrules those objections.
With respect to a magistrate judge’s order relating to nondispositive pretrial
matters, the district court does not conduct a de novo review; rather, the court applies a
more deferential standard by which the moving party must show that the magistrate
judge’s order is “clearly erroneous or contrary to law.” See First Union Mortgage Corp.
v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988)); 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ.
The Court refers to defendants collectively as “Comcast” and to plaintiff as
P. 72(a). The clearly erroneous standard “requires that the reviewing court affirm unless
it on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” See Ocelot Oil, 847 F.2d at 1464 (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)). Arguments not made to the Magistrate
Judge are deemed waived and may not be raised for the first time on review. See
McCormick v. City of Lawrence, Kan., 218 F.R.D. 687, 693 n.4 (D. Kan. 1993) (citing
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)).
The Court concludes that the Magistrate Judge did not clearly err or act contrary
to law in his ruling. First, Comcast emphasizes that the court in the Pennsylvania action
involving these parties did not find any waiver of the privilege by Comcast. That court’s
ruling on specific issues does not bind this Court in resolving separate issues in this case,
however. Moreover, in its objections, Comcast relies on proceedings taking place in that
court after January 25, 2017, but it waived any such argument based on those
proceedings by failing to discuss those proceedings before the Magistrate Judge.
Second, Comcast argues that there was no waiver because the evidence disclosed
in Pennsylvania was not privileged. Comcast has effectively waived any such argument,
however. Comcast notes that it called Sprint’s allegations “meritless” in its brief to the
Magistrate Judge; but in that brief, Comcast did not discuss any particular evidence or
offer any argument as to why the disclosed evidence was not privileged. It may not do
so for the first time now. Moreover, the Magistrate Judge’s finding that some of the new
evidence was privileged was not without basis. Comcast did not deny in its original brief
that many of the documents were labeled as privileged on their face, that some were
redacted, and that the November 2007 document was sent to counsel. Even in its
objections, Comcast has not explained why Mr. Finnegan’s deposition testimony was not
privileged, particularly given his previous sworn testimony that he knew the answers
only because of privileged discussions with counsel.2 In the absence of argument to the
contrary, the Magistrate Judge did not clearly err in finding that Comcast had disclosed
Third, the Court concludes that the Magistrate Judge did not clearly err with
respect to the scope of the waiver. The Magistrate Judge reasonably weighed the
pertinent considerations in defining the subject matter of the disclosed information. The
Court also rejects Comcast’s argument that it did not decide to use privileged
information in the Pennsylvania case. In that case, Comcast was ordered to produce
documents and offer Mr. Finnegan for a deposition if it wished to present certain
testimony at trial, and the disclosures resulted.
Fourth, the Court rejects Comcast’s timeliness argument. The Court agrees with
the Magistrate Judge that this issue arose from Comcast’s recent production and the
deposition of Mr. Finnegan.
Comcast does request clarification concerning documents containing redactions
Comcast suggests that Mr. Finnegan, a lay witness, invoked the privilege under
pressure and on the fly. Mr. Finnegan, however, was represented in the original
deposition by counsel, who instructed Mr. Finnegan not to answer.
of information that does not fall within the categories of documents ordered produced
by the Magistrate Judge. The Court interprets the Magistrate Judge’s order not to require
that such redactions be undone.3
IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ objections
(Doc. # 1115) to the Magistrate Judge’s Order of February 23, 2017, are hereby
overruled. Comcast shall produce the documents to Sprint as ordered by the Magistrate
Judge (and as clarified herein) on or before March 2, 2017.
IT IS SO ORDERED.
Dated this 1st day of March, 2017, in Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
The Court ordered Comcast to provide the responsive documents in camera, and
Comcast provided 15 documents. The Court notes that the Magistrate Judge
contemplated disclosure of at least some of the 118 documents from prior privilege logs
about which Sprint inquired and which Comcast purportedly reviewed. Thus, when it
produces the documents to Sprint as ordered, Comcast shall file a notice confirming its
compliance with this order.
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