Sprint Communications Company L.P. v. Comcast Cable Communications, LLC et al

Filing 318

MEMORANDUM AND ORDER - Defendants' Objections 245 to the Orders by which the Magistrate Judge denied defendants' motion to compel are sustained in part and overruled in part. The Court concludes that Sprint did waive the attorney-client privilege with respect to the subject of an outside law firm's legal advice concerning possible infringement by Vonage, and defendants' objections are sustained to that extent. Within 14 days of the date of this order, Sprint must modify i ts privilege log and produce as appropriate all documents responsive to Request No. 43 that fall within the scope of the waiver as determined by this Court (subject to any other remaining applicable objections). The objections are otherwise denied. Signed by District Judge John W. Lungstrum on 07/22/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SPRINT COMMUNICATIONS
COMPANY L.P.,

)
)
)
Plaintiff,
)
)
v.
)
)
COMCAST CABLE COMMUNICATIONS
)
LLC, et al.,
)
)
Defendants.
)
_______________________________________)
)
SPRINT COMMUNICATIONS
)
COMPANY L.P.,
)
)
Plaintiff,
)
)
v.
)
)
CABLE ONE, INC.,
)
)
Defendant.
)
_______________________________________)
)
SPRINT COMMUNICATIONS
)
COMPANY L.P.,
)
)
Plaintiff,
)
)
v.
)
)
TIME WARNER CABLE, INC., et al.,
)
)
Defendants.
)
_______________________________________)

CONSOLIDATED CASES

Case No. 11-2684-JWL

Case No. 11-2685-JWL

Case No. 11-2686-JWL

MEMORANDUM AND ORDER
These consolidated cases brought by plaintiff Sprint Communications Company,
L.P. (“Sprint”) come before the Court on defendants’ objections (Doc. # 245) to the
Orders by which the Magistrate Judge denied defendants’ motion to compel (Doc. #
153). For the reasons set forth below, the objections are sustained in part and
overruled in part. The Court concludes that Sprint did waive the attorney-client
privilege with respect to the subject of an outside law firm’s legal advice concerning
possible infringement by Vonage, and defendants’ objections are sustained to that extent.
The objections are otherwise denied.1

I.

Background

In these actions, Sprint asserts claims of patent infringement against various
defendants. In September 2007, the undersigned presided over a trial of Sprint’s patent
infringement claims against defendants Vonage Holdings Corp. and Vonage America,
Inc. (collectively “Vonage”). The Vonage case involved some of the same patents,
issued to inventor Joseph Christie, that are at issue in the present cases. During the
Vonage trial, Sprint called two in-house attorneys, Michael Setter and Harley Ball, to
testify about Mr. Christie’s inventions, Sprint’s evaluation of their patentability, Sprint’s

1

In light of the Court’s conclusion that this matter may be decided on the basis of
the parties’ written submissions, the Court denies defendants’ request for oral argument.
2

patent applications, and Sprint’s decision to sue Vonage for infringement. Sprint’s trial
counsel also discussed those topics in opening statement and closing argument in
Vonage.
In the present cases, defendants propounded document requests to Sprint by
which they sought documents with information relating to the following four topics (as
characterized by defendants), which were the subjects of Sprint’s disclosures during the
Vonage trial (hereafter referred to as “Topic 1,” “Topic 2,” etc.): “(1) assessments by
Sprint’s legal department of the patentability of Mr. Christie’s purported inventions; (2)
the preparation or prosecution of patent applications for such inventions (including
instructions and other communications of Sprint’s legal department relating thereto); (3)
communications and analysis of Sprint’s legal department concerning its pre-suit
investigation into whether Vonage infringed the patents concerning Mr. Christie’s
purported inventions; and (4) communications among Sprint’s legal department and its
executives regarding authorization to contact Vonage about alleged infringement of such
patents and to sue Vonage for such alleged infringement.” Sprint asserted objections
based on attorney-client privilege and work-product immunity, and defendants moved
to compel production of the documents. In their motion to compel, defendants argued
that Sprint had waived the attorney-client privilege by its testimony and discussion of
those topics during the Vonage trial.
On February 11, 2014, the Magistrate Judge issued an order (Doc. # 177) granting
the motion in part and denying it in part. The Magistrate Judge upheld the assertion of
3

the attorney-client privilege and denied the motion to compel with respect to Topic 3 and
Topic 4. With respect to Topic 1 and Topic 2, however, the Magistrate Judge ruled that
Sprint had not properly invoked—and thus had waived—the attorney-client privilege in
responding to the document requests, and he therefore granted the motion to compel with
respect to those topics. Sprint moved for reconsideration of the latter ruling, and on
April 18, 2014, the Magistrate Judge issued a second order (Doc. # 228) granting the
motion. Upon reconsideration, the Magistrate Judge concluded that Sprint had not
waived the attorney-client privilege with respect to Topic 1 and Topic 2 under the
specific circumstances of these cases, and he proceeded to uphold the assertion of the
privilege. Thus, in the end, the Magistrate Judge denied the motion to compel in its
entirety. Defendants now seek review of those orders by this Court.

II.

Governing Standard of Review

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.
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
4

been committed.” See Ocelot Oil, 847 F.2d at 1464 (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).

III.

Analysis
A.

Work-Product Immunity

In his first order, the Magistrate Judge noted that, although the parties had set
forth the standards for work-product protection and waiver in their briefs on the motion
to compel, defendants had not made any specific arguments relating to whether Sprint
waived work-product immunity by its use of work product during the Vonage trial, other
than defendant’s inclusion of a conclusory statement about work-product waiver in a
footnote in their reply brief. Thus, the Magistrate Judge did not address the issue of
work-product waiver.
In their initial brief in support of their objections to this Court, defendants did not
make any arguments relating specifically to waiver of work-product immunity, nor did
it take issue with the Magistrate Judge’s refusal to address that objection by Sprint to the
document requests. In its response brief to this Court, Sprint observed that, in light of
that refusal by the Magistrate Judge, any objection to the production of a document
based on the assertion of the work-product immunity would not be affected by any ruling
that Sprint had waived the attorney-client privilege. Subsequently, in a footnote in their
reply brief, defendants contended that they had argued work-product immunity in their
motion to compel and thus had not forfeited any such argument, and that because the
5

theory of implied waiver operates in the same way in both contexts of the attorney-client
privilege and work-product immunity, “there is no need for a separate analysis of
Defendants’ work-product waiver claims.”
The Court agrees with Sprint that defendants have waived any challenge to
Sprint’s work-product objections. The Magistrate Judge explicitly ruled that defendants
had not sufficiently raised the work-product issue in their briefs, and if defendants
wished to challenge that ruling, they were obliged to make that challenge in their initial
objections to this Court. The Court will not consider an argument raised for the first time
in a reply brief. See, e.g., U.S. Fire Ins. Co. v. Bunge N. Am., Inc., 2008 WL 3077074,
at *9 n.7 (D. Kan. Aug. 4, 2008) (citing Minshall v. McGraw Hill Broadcasting Co., 323
F.3d 1273, 1288 (10th Cir. 2003)). Defendants thus waived any challenge to that ruling
by the Magistrate Judge, which therefore still stands. The effect of that ruling is that
defendants failed to raise sufficiently the issue of work-product waiver in their motion
to compel, which means that Sprint’s objections to the document requests on the basis
of work-product immunity still have effect.
B.

Explicit Waiver – Attorney-Client Privilege

A party waives the attorney-client privilege if it discloses the substance of an
otherwise-privileged communication. See In re Qwest Communications Int’l Inc., 450
F.3d 1179, 1185 (10th Cir. 2006).2 Defendants assert that Sprint disclosed privileged

2

The Federal Circuit has held that, in a patent case, the issue of waiver by
(continued...)
6

information during the Vonage trial and thus waived the attorney-client privilege with
respect to the subject matter of that information. The Magistrate Judge disagreed in his
two orders, and defendants now challenge those rulings.
The attorney-client privilege protects only communications and does not protect
underlying facts. See Upjohn Co. v. United States, 449 U.S. 383, 385-86 (1981).
Moreover, as this Court has observed, the privilege does not protect information
concerning the activities of the attorney or the general topic of discussion between
attorney and client, as long as the substance of the communication is not revealed. See
Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 499-500 (D. Kan. 1997). The
Magistrate Judge applied these principles of privilege law, and defendants do not dispute
that such principles apply here.
In his orders, the Magistrate Judge thoroughly analyzed each alleged disclosure,
by testimony or attorney statement, by Sprint in the Vonage trial, and he concluded that
in every instance, covering all four topics, the witness or attorney had not disclosed the
substance of privileged communications between attorney and client. The Court has
reviewed those disclosures, and it concludes that, with a single exception, the Magistrate
Judge did not clearly err in his rulings.
The Court concludes that in one instance, Sprint did disclose the substance of a

2

(...continued)

disclosure of privileged information is governed by regional circuit law. See GFI, Inc.
v. Franklin Corp., 265 F.3d 1268, 1273 (Fed. Cir. 2001).
7

privileged communication between attorney and client. In the Vonage trial, Sprint’s trial
attorney stated in opening statement that Sprint believed that Vonage had infringed 43
patents, a Sprint attorney had an outside law firm look at the issue, the law firm
“agreed”, and Sprint then contacted Vonage and accused it of infringement. By this
statement, Sprint disclosed the substance of legal advice received from an outside law
firm, namely that outside counsel agreed that Vonage had infringed. See, e.g., In re
Independent Serv. Orgs., 1999 WL 450906, at *3 (D. Kan. May 24, 1999) (retainer
letters that also included legal advice that other party had breached a contract, committed
tortious interference, and violated statutes, and that the client should file suit were
privileged). Thus Sprint did disclose protected information and did thereby waive the
attorney-client privilege with respect to the subject matter of that information.3

3

In neither its response to defendants’ motion to compel or its response to
defendants’ objections to the Magistrate Judge’s rulings did Sprint try to explain how it
had not revealed the substance of legal advice by this statement of counsel. Sprint
argued generally in responding to the motion to compel, without citation to relevant
authority, that ultimate legal conclusions should fall outside the attorney-client privilege
because the attorney’s ultimate recommendation to the party will always be revealed by
the fact that the party subsequently filed suit. A party can easily avoid waiver, however,
by testifying only that it sought advice from counsel and then acted in a certain way,
thereby maintaining the privilege with respect to the entire subject matter by refusing to
disclose explicitly the attorney’s ultimate advice. Indeed, the Magistrate Judge made this
very distinction in his ruling with respect to Topic 4. See also New Jersey v. Sprint
Corp., 258 F.R.D. 421, 428 (D. Kan. 2009) (because ultimate legal advice was not
disclosed and inference was required to determine the substance of that advice based on
subsequent actions, privilege was not waived). Under Sprint’s position, a party could
be asked directly on the stand whether its attorney advised that a patent had been
infringed, and an objection based on attorney-client privilege should be overruled
because that is not a privileged communication. Clearly that is not the law.
8

Accordingly, the Court sustains defendants’ objection to that extent.
The Court must then determine the scope of Sprint’s waiver. Citing cases from
various other circuit courts, the Federal Circuit has explained the traditional rule as
follows:
The widely applied standard for determining the scope of a waiver
of attorney-client privilege is that the waiver applies to all other
communications relating to the same subject matter. The waiver extends
beyond the document initially produced out of concern for fairness, so that
a party is prevented from disclosing communications that support its
position while simultaneously concealing communications that do not.
There is no bright line test for determining what constitutes the subject
matter of a waiver, rather courts weigh the circumstances of the disclosure,
the nature of the legal advice sought and the prejudice to the parties of
permitting or prohibiting further disclosures.
See Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349-50 (Fed. Cir. 2005)
(citations omitted); see also United States v. Workman, 138 F.3d 1261, 1263 (8th Cir.
1998) (“The waiver [of the attorney-client privilege] covers any information directly
related to that which was actually disclosed.”) (citing 8 Charles A. Wright, et al., Federal
Practice and Procedure § 2016.2).
Moreover, Rule 502 provides that if a disclosure in a federal proceeding waives
the attorney-client privilege, the waiver extends to undisclosed communications only if
“(1) the waiver is intentional; (2) the disclosed and undisclosed communications or
information concern the same subject matter; and (3) they ought in fairness to be
considered together.” See Fed. R. Evid. 502(a). The Explanatory Note to Rule 502
offers the following explanation:

9

The rule provides that a voluntary disclosure in a federal proceeding . . .,
if a waiver, generally results in a waiver only of the communication or
information disclosed; a subject matter waiver . . . is reserved for those
unusual situations in which fairness requires a further disclosure of
related, protected information, in order to prevent a selective and
misleading presentation of evidence to the disadvantage of the adversary.
Thus, subject matter waiver is limited to situations in which a party
intentionally puts protected information into the litigation in a selective,
misleading and unfair manner.
See id. adv. cmte. explan. notes (citations omitted); see also In re Urethane Antitrust
Litig., 2011 WL 322675, at *3 (D. Kan. Jan. 31, 2011) (citing Rule 502(a) and
explanatory note).4
The Court thus considers the ultimate question of fairness in determining the
scope of Sprint’s waiver. As set forth above, the waiver here was limited to the
statement that an outside law firm gave Sprint the legal advice that Vonage had infringed
43 patents. It certainly cannot be assumed that such information concerning Vonage’s
infringement will be relevant in the present actions involving different defendants, but
because some of the same patents are at issue here, it is possible that some portion of the
law firm’s analysis could prove relevant. Fairness dictates that defendants be permitted
to test the truth of the statement of the legal advice received, at least for purposes of
discovery. Thus, the Court concludes that Sprint should be deemed to have waived the
attorney-client privilege with respect to the specific subject of the advice received by

4

The Magistrate Judge noted that, although Rule 502 was not enacted until 2008,
after the Vonage trial, the parties had presumed its application here, and that Congress
had noted in enacting the rule that it did not intend to alter existing substantive law.
10

Sprint from the law firm concerning whether Vonage had infringed Sprint’s patents.
There is no basis to extend the scope of the waiver to the broader subject of Sprint’s
actions generally to investigate possible infringement by Vonage.
Accordingly, within 14 days of the date of this order, Sprint must modify its
privilege log, and it must produce as appropriate all documents that (a) are responsive
to Request No. 43 and fall within the scope of the waiver as determined by this Court
and (b) are not protected by other objections that have not been overruled.
C.

Implicit Waiver – Attorney-Client Privilege

Defendants argue that, even if Sprint did not explicitly waive the attorney-client
privilege with respect to certain topics by disclosing privileged information in the
Vonage trial, Sprint has impliedly waived the privilege. Defendants rely on the waiver
doctrine set forth by this Court in Williams v. Sprint/United Management Co., 464 F.
Supp. 2d 1100, 1104-05 (D. Kan. 2006) (Lungstrum, J.). In Williams, the Court noted
that the Tenth Circuit had recognized three general approaches used by courts for waiver
of the attorney-client privilege, and it predicted that the Tenth Circuit would likely adopt
the Hearn intermediate approach. See id. at 1104 (citing Frontier Ref. Inc. v. GormanRupp Co., 136 F.3d 695, 699 (10th Cir. 1998)). The Tenth Circuit quoted from the case
of Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), in listing the requirements for
waiver under that test:
(1) assertion of the privilege was the result of some affirmative act, such
as filing suit, by the asserting party; (2) through this affirmative act, the
asserting party put the protected information at issue by making it relevant
11

to the case; and (3) application of the privilege would have denied the
opposing party access to information vital to its defense.
See Frontier, 136 F.3d at 701 (quoting Hearn, 68 F.R.D. at 581) (emphasis added by
Tenth Circuit). The Tenth Circuit noted that in the case before it, the third condition had
not been established in light of the availability of other sources for evidence. See id. In
Williams, after listing the three requirements from Hearn, the Court noted Hearn’s
further description of the doctrine:
A court, then, should find that the party asserting a privilege has impliedly
waived that privilege through his own affirmative conduct when the party
“places information protected by it in issue through some affirmative act
for his own benefit, and to allow the privilege to protect against disclosure
would [be] manifestly unfair to the opposing party.”
Williams, 464 F. Supp. 2d at 1104-05 (brackets in original).
In this case, the Magistrate Judge addressed and rejected this argument in ruling
with respect to Topic 3, as follows:
The court finds this argument tenuous at this point in the instant
litigation. First, defendants have not demonstrated that implicit waiver
could have been found in Vonage, even if it had been asserted.
Specifically, defendants have not demonstrated that Sprint relied on the
advice or communications of its counsel to prove a claim or justify certain
conduct on Sprint’s part, nor that if Sprint had so done, it was “manifestly
unfair” to Vonage. Second, defendants have not presented any support for
their inferred argument that implicit waiver (in contrast to subject matter
waiver based on explicit waiver) in one case can carry over to a
subsequent case. Given the fairness consideration at issue in implicit
waiver situations—i.e., manifest unfairness to the opposing party—the
court is not persuaded that implicit waiver automatically carries over to
subsequent cases. Finally, defendants have not demonstrated that Sprint
plans to rely on the advice that counsel gave it with respect to possible
infringement by Vonage to prove a claim in this case. The court will
follow the approach taken in Williams and New Jersey v. Sprint by
12

allowing defendants to revisit this issue should Sprint “affirmatively and
voluntarily inject the reliance on counsel issue at trial or in subsequent
briefing” in this action.
(Emphasis in original, footnotes omitted.)
Sprint argues that defendants have waived this specific waiver argument by
failing to raise it sufficiently before the Magistrate Judge. It is true that defendants have
refined this argument in making it to this Court, in the sense that they did not specifically
argue below that Sprint, alternatively, had impliedly waived the privilege even if the
information disclosed in the Vonage trial was not privileged. Nevertheless, the Court
concludes that defendants did sufficiently raise the issue of implicit waiver before the
Magistrate Judge. In their brief to the Magistrate Judge, defendants did set forth the
governing law on implicit waiver, as set forth above, and the Magistrate Judge did
directly address implicit waiver in his orders, at least with respect to Topic 3. Thus,
defendants are not precluded from making this argument to this Court.5
The Court also rejects defendants’ argument that the Magistrate Judge did not
apply the correct test for implicit waiver. Apparently, defendants would rely only on this
Court’s further description of the test from Hearn, quoted above, that requires only a
showing that Sprint affirmatively placed the information at issue for its benefit and that

5

It is understandable that the Magistrate Judge addressed this issue only with
respect to Topic 3 because defendants only made a specific argument for implicit waiver
in the section of their brief addressing that topic. Nevertheless, the Court will not
preclude defendants from making the argument in this Court with respect to all four
topics. The Court declines defendants’ invitation to remand the issue for consideration
of the issue by the Magistrate Judge as it relates to the other three topics.
13

fairness demands waiver of the privilege. Thus, defendants take issue with the
Magistrate Judge’s consideration of whether Sprint relied on the privilege to prove a
claim or justify certain conduct.

That analysis, however, is consistent with the

requirement, from Hearn itself, that the privilege have been asserted as the result of
some affirmative act. Defendants also appear to take issue with Sprint’s insistence that
defendants show that the information is vital to their defense, but that requirement is
taken straight from the Tenth Circuit’s quotation of the test from Hearn. Moreover, the
Magistrate Judge explicitly addressed the issue of fairness, which defendants would
make the key consideration for this analysis.
The Court agrees with the analysis of this issue by the Magistrate Judge, and it
therefore rejects defendants’ implicit waiver argument. First, the Court agrees that the
issue is not whether Sprint implicitly waived the privilege by placing privileged
information at issue in the Vonage case. Defendants have cited no authority (even after
the absence of authority was noted by the Magistrate Judge) to support the position that
an implicit waiver in one case may carry over to a later case involving the same party.
Rather, the test, as enunciated in Hearn, requires that the party asserting the privilege
have placed privileged information at issue in the present case, such that fairness
demands rejection of the privilege in the present case. In arguing to the Magistrate
Judge, defendants focused entirely on the testimony and attorney statements in the
Vonage trial; thus, the Magistrate Judge correctly ruled not only that defendants had
failed to establish waiver in Vonage, but also that they had failed to show that waiver
14

was justified in the present case.
Defendants now argue to this Court that the Vonage proceedings are relevant to
this inquiry because Sprint is likely to adopt the same strategy—and make the same
statements and offer the same testimony—in the present case. Topics 3 and 4, however,
involve Sprint’s investigation into infringement by Vonage and authorization for Sprint
to contact and sue Vonage. Vonage is not a party to the present actions, and it is
therefore unlikely that Sprint will propound testimony on those particular topics in the
present case. Defendants may believe that Sprint will offer testimony about its
investigation of infringement by them and its decision to sue them; but defendants have
not offered any basis for this Court to conclude that Sprint’s investigation of them was
at all similar to its investigation of Vonage. Even though the Magistrate Judge
specifically noted this disconnect between the investigation of Vonage and the claims
in this case, defendants failed to address this point in its briefs to this Court.
Accordingly, at least with respect to Topics 3 and 4, the Magistrate Judge did not clearly
err in adopting a wait-and-see approach, by which he rejected the argument at the present
time, but left open the door for defendants to revisit the issue if Sprint places its reliance
on counsel at issue in the present actions.
The Court also rejects the implicit waiver argument as it relates to all four topics
for other reasons. The Court does not believe that Sprint—even if it offers the same
testimony from Vonage in this case—will have sufficiently placed the privilege and its
reliance on counsel at issue in the litigation for purposes of the Hearn analysis. As the
15

Magistrate Judge noted, defendants have not explained how Sprint will thus have relied
on the privilege to justify some conduct or support some claim. Defendants have not
provided any authority to support application of the implicit waiver doctrine in this
context, where a party has simply referred to its consultation and reliance on counsel in
explaining its decisions to file patent applications and bring suit, but where that reliance
on counsel is not germane to the claims. The Court is not persuaded that a party loses
the attorney-client privilege with respect to conversations containing legal advice simply
by bringing the lawsuit that resulted from following that advice. Nor have defendants
addressed how the privileged information is vital to its defense, as required under this
test. Thus, to explain it in the alternative terms set out in Williams, in this situation
fairness does not demand that the privilege be pierced simply because Sprint might offer
testimony (as it did in Vonage) about unprivileged facts and general topics of discussions
with counsel.
Moreover, Sprint might not succeed in placing privileged information at issue in
the present case for the reason that Sprint’s diligence in investigating the patentability
of the inventions or infringement by other parties does not seem especially relevant here.
It does not appear that Vonage objected at trial to the statements and testimony at issue
here, and thus the Court was not called upon to rule on the relevancy of those statements
and testimony; but certainly there is no guarantee that Sprint will be able to pursue these

16

topics at any length at trial if objections are asserted.6
Finally, defendants have failed to explain why it could not obtain in discovery
similarly unprivileged facts—facts sufficient to rebut or test Sprint’s unprivileged
assertions concerning underlying facts, the general topics of its discussions with its
attorneys, the acts and services performed by those attorneys, and the general scope of
the representation. Defendants generally complain that Sprint should not be allowed to
reference at trial its counsel’s diligence in investigating its patents and claims if
defendants are not permitted discovery needed to test and possibly rebut those assertions
of diligence. The amount and type of work performed by the attorneys is not protected
by the attorney-client privilege, however, and defendants are therefore free to propound
discovery on those issues (subject to other applicable objections, of course). That
diligence does not necessarily place at issue the particular advice given by Sprint’s
counsel, however, and therefore fairness does not demand that defendants be allowed
access to such privileged communications.
Accordingly, the Court rejects defendants’ implicit waiver argument, and it
therefore overrules defendants’ objections on that issue.

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ objections
(Doc. # 245) to the Orders by which the Magistrate Judge denied defendants’ motion to

6

The relevancy of such testimony could be appropriately raised by motion in
limine before trial.
17

compel are sustained in part and overruled in part. The Court concludes that Sprint
did waive the attorney-client privilege with respect to the subject of an outside law firm’s
legal advice concerning possible infringement by Vonage, and defendants’ objections
are sustained to that extent. Within 14 days of the date of this order, Sprint must modify
its privilege log and produce as appropriate all documents responsive to Request No. 43
that fall within the scope of the waiver as determined by this Court (subject to any other
remaining applicable objections). The objections are otherwise denied.

IT IS SO ORDERED.

Dated this 22nd day of July, 2014, in Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

18