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

Filing 477

MEMORANDUM AND ORDER - Defendant's objections 409 to the Magistrate Judge's Order of September 12, 2014, are hereby overruled, and defendant Comcast shall produce to plaintiff an unredacted copy of the e-mail at issue by November 7, 2014. Signed by District Judge John W. Lungstrum on 10/31/2014. (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.
)
_______________________________________)

Case No. 11-2684-JWL

MEMORANDUM AND ORDER
This case comes before the Court on defendants’ objections (Doc. # 409) to the
order by which the Magistrate Judge rejected defendants’ claim that a particular e-mail
was privileged and granted plaintiff’s motion to compel (Doc. # 388).1 For the reasons
set forth below, the objections are overruled, and defendant Comcast shall produce to
plaintiff an unredacted copy of the e-mail by November 7, 2014.

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The Comcast defendants (“Comcast”) originally produced and then clawed-back
the e-mail in question; plaintiff moved to compel production of the e-mail by Comcast
(and certified that it had conferred with counsel for Comcast; Comcast’s counsel filed
a response brief on behalf of Comcast; and the Magistrate Judge issued his order only
in the case involving Comcast (Case No. 11-2684). Nevertheless, the objections to that
order, which included all three case captions and which were filed and electronically
signed by counsel for the Time Warner defendants (defendants in Case No. 11-2686),
with counsel for Comcast and for Cable One (Case No. 11-2685) also listed, appear to
have been submitted on behalf of all defendants in the three consolidated cases. Plaintiff
has not raised any issue about the other defendants’ standing to object to this order; but
because the Magistrate Judge issued his order only in Comcast’s case, this Court has
done likewise here.

I.

Background

In this action and two other consolidated 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 the Vonage defendants, which
involved some of the same patents that are at issue in the present cases. Prior to that
trial, the Dreier law firm was jointly retained by Comcast and two other cable companies
(Time Warner and Cox); according to a declaration by one of the Dreier attorneys
involved, Dreier was retained “to review the . . . Sprint v. Vonage proceedings and to
provide related legal advice and legal services.”
On October 3, 2007, a Dreier attorney sent an e-mail to another Dreier attorney
and to in-house counsel at the three cable companies. The subject of the e-mail was
“Madonna and Cable References . . .” Attached to the e-mail was a copy of a prior art
reference. The e-mail stated:
Attached please find a copy of the Madonna reference upon which
Vonage relied at trial. Also, the following is a listing of references
to cable companies in the trail [sic] transcript. Please feel free to
contact me if you have any questions.
The remainder of the e-mail was a list of 11 page references from the transcript with a
phrase summarizing the content of each citation. For instance, the first reference was as
follows: “p. 190-191 - description of Sprint’s support to the cable companies.” The final
reference was as follows: “p. 1880-1882 - description of timeline where cable companies
and telephone companies provide VoIP; reference to Sprint partner [sic] with

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TimeWarner.”
Comcast produced the e-mail in discovery in this action, but after Sprint referred
to the document in its own discovery responses, Comcast clawed-back the document,
asserting attorney-client privilege, pursuant to procedures in place in the case. Sprint
moved to compel production of the document, and the Magistrate Judge ordered that the
document be submitted for in camera review. Subsequently, by order of September 12,
2014, the Magistrate Judge granted the motion and ordered production of the document.
The Magistrate Judge reasoned as follows:
Comcast asserts that the attorney-client privilege protects the Email from disclosure because the E-mail is a confidential communication
from an attorney to his joint clients made in the course of providing legal
advice. Comcast describes the E-mail as follows: “Mr. Kaufman . . .
distilled many pages of transcript to one page of points selected by him,
and presented his analysis to his clients in his own words.” Perhaps if
Comcast’s characterization of the E-mail were accurate, the court would
place more credence in Comcast’s privilege assertion. But the court finds
that Comcast completely oversells the substance of the [E-mail]. As set
out above, the E-mail did not contain any analysis. Nor did it include
legal advice from the attorney. It is simply a [bare]-bones listing of
citations to a public transcript.
...
The E-mail here is akin to a “general description of the work
performed by the attorney.” It shows that the attorney searched the
transcript for references to cable companies. Comcast has not met its
burden to show, however, that the purpose of the E-mail was to provide
legal advice. On its face, the E-mail does not report legal strategies or
attorney thought processes; legal advice is not the subject of the E-mail.
Indeed, there is no privileged information in the E-mail to redact prior to
the E-mail being disclosed. Accordingly, the E-mail is not privileged.
(Footnotes omitted.) In light of that conclusion that the e-mail was not protected by the
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privilege, the Magistrate Judge declined to reach plaintiff’s alternative argument that any
privilege had been waived by the disclosure of the communication to the other cable
companies that hired the attorney. Defendants now seek review of the Magistrate
Judge’s order.

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
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

“The burden of establishing the applicability of the attorney-client privilege rests
on the party seeking to assert it.” See In re Grand Jury Proceedings, 616 F.3d 1172,
1183 (10th Cir. 2010) (internal quotation and citation omitted). “The privilege must be
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strictly construed and accepted only to the very limited extent that permitting a refusal
to testify or excluding relevant evidence has a public good transcending the normally
predominant principle utilizing all rational means for ascertaining truth.” See id.
(internal quotations and citations omitted).
Defendants first argue that the order is contrary to law because the Magistrate
Judge applied the wrong legal standard.

Specifically, defendants argue that a

communication from an attorney to his client is privileged if it was made “in the course
of” giving legal advice or if it “relates to” legal advice or strategy; and that the
Magistrate Judge improperly applied a narrower standard by considering whether the
document here actually contained legal advice or strategies.

Thus, in essence,

defendants contend that any communication made by the attorney to the client during the
course of the client’s engagement of the attorney for legal advice is privileged, whatever
the content. The Court concludes, however, that the Magistrate Judge did not err in
refusing to apply such a standard, as the law is clear that the privilege does not protect
all attorney-client communications during the course of such an engagement.
The following description of the scope of the privilege by the Tenth Circuit is
determinative here:
The attorney-client privilege protects confidential communications
by a client to an attorney made in order to obtain legal assistance from the
attorney in his capacity as a legal advisor. The mere fact that an attorney
was involved in a communication does not automatically render the
communication subject to the attorney-client privilege; rather the
communication between a lawyer and client must relate to legal advice or
strategy sought by the client.
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Although this description of the attorney-client privilege suggests
the privilege only applies one way, operating to protect the client’s
communications to a lawyer, it is generally also recognized that the
privilege will protect at least those attorney to client communications
which would have a tendency to reveal the confidences of the client.
However, when an attorney conveys to his client facts acquired from other
persons or sources, those facts are not privileged.
...
. . . These questions thus requested “conduit” information—
whether a third party’s statement was passed along by the attorney to the
client.
Where questions only request information regarding
communications where the attorney was acting as a “conduit” for nonconfidential information, the client may not invoke the attorney-client
privilege. These questions did not request information regarding
privileged legal advice provided by the attorney to his client, nor would
the questions tend, directly or indirectly, to require the attorney to reveal
the substance of any legal confidence.
See In re Grand Jury Proceedings, 616 F.3d at 1182-83 (footnotes and internal
quotations and citations omitted). Thus, the Tenth Circuit made clear that not all
communications from the attorney are privileged; rather, the Court directed the inquiry
toward the content of the communication, considering whether that content included
legal advice or tended to reveal confidences of the client, or included instead (in that
case) merely facts from other sources. Similarly, judges in this district have applied the
maxim that “[a] general description of the work performed by the attorney is not
protected by the privilege,” see, e.g., In re Universal Serv. Fund Tel. Billing Practices
Litig., 232 F.R.D. 669, 675 (D. Kan. 2005)—a statement of the law that defendants have
not challenged in their present objections.
Defendants rely on this Court’s statement in Burton v. R.J. Reynolds Tobacco Co.,
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200 F.R.D. 661 (D. Kan. 2001) (Lungstrum, J.), that “[t]he attorney-client privilege
protects confidential communications between an attorney and client which occur in the
course of giving or requesting legal advice.” See id. at 669. The Court clearly did not
intend that statement to mean, however, that all communications in the course of an
engagement for legal advice are privileged, without regard to content, as defendants
appear to argue in this case. Indeed, in Burton, in ruling on whether the privilege applied
to a number of documents, the Court examined the content of the particular
communications. See id. at 669-79. In his order in this case, the Magistrate Judge aptly
cited a number of examples of the Court’s rulings in Burton.
Defendants also quote the Tenth Circuit’s statement in Sprague v. Thorn
Americas, Inc., 129 F.3d 1355 (10th Cir. 1997), that the privilege protects “an attorney’s
communications to his client without the qualification that the communications must
contain confidential matters revealed by the client earlier to the attorney.” See id. at
1371. That statement has no relevance here, however, as defendants should well have
appreciated. In Sprague, the Tenth Circuit made that statement in describing a broad
approach favored by Kansas courts under a particular Kansas statute. See id. at 1370-71.
That statute does not apply here, as this case involving federal statutory claims is
governed by federal privilege law (as the Magistrate Judge noted in his order). See id.
at 1368-69.
Defendants argue that any standard narrower than the one that they urge could
chill candid communication between attorneys and clients because attorneys would be
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forced to monitor each communication to assess whether it contains legal analysis for
purposes of the privilege. The Court is not persuaded that the privilege would be so
threatened by a rejection of defendants’ position. It is black-letter law—and defendants
have not disputed—that not every communication between attorney and client is
privileged, and attorneys have always had to bear that fact in mind in communicating
with their clients. Defendants make the puzzling argument that, even if particular
communications do not reveal legal advice or strategies or confidences, their disclosure
“in the aggregate” could reveal confidences that the privilege is intended to protect. As
the Tenth Circuit has noted, however, if a communication tends to reveal confidential
information, it is protected. If it does not, then it should not be protected, regardless of
how many such innocuous communications there are. Indeed, in the most absurd
example, under defendants’ standard, communications stating no more than “yes” or
“let’s talk about that at the golf course” would be privileged if they were made in the
course of a legal engagement; such communications are clearly not privileged, however,
as the privilege does not protect the mere fact of a communication or of the relationship
between the attorney and client, or the general description of the attorney’s work.
Accordingly, the Court rejects the standard urged by defendants, and it concludes
that the Magistrate Judge did not act contrary to law in refusing to apply such a standard.
The Court further concludes that the Magistrate Judge did not clearly err in
finding that Comcast had not met its burden to show that the e-mail is protected by the
attorney-client privilege.

The Court has little to add to the Magistrate Judge’s
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characterization of the e-mail (and of Comcast’s overselling it), and it agrees that the
communication does not contain any legal analysis or advice. The communication does
not reveal any legal analysis performed by the attorney, who merely listed all references
to cable companies in the transcript (and who thus did not, as defendants argue, make
some analytical decision about what to list).2 The document reveals that the attorney was
merely acting as a conduit for information from another source (a public transcript).
Moreover, the e-mail does not tend to reveal any client confidences or legal advice or
strategy; the most it reveals is that the clients asked the attorney to review the transcript
for references to cable companies, and such a general description of work performed or
requested is not privileged. Accordingly, defendants’ objections to the Magistrate
Judge’s order are overruled.3

IT IS THEREFORE ORDERED BY THE COURT THAT defendants’ objections
(Doc. # 409) to the Magistrate Judge’s Order of September 12, 2014, are hereby
overruled, and defendant Comcast shall produce to plaintiff an unredacted copy of the
e-mail at issue by November 7, 2014.

IT IS SO ORDERED.

2

Defendants make no argument that the attachment of and reference to the prior
art should be privileged.
3

In light of this conclusion, the Court need not consider plaintiff’s waiver
argument.
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Dated this 31st day of October, 2014, in Kansas City, Kansas.

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

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