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

Filing 834

MEMORANDUM AND ORDER granting in part and denying in part 747 Sealed Motion. Signed by Magistrate Judge James P. O'Hara on 6/29/2015. (mmg)

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

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

CONSOLIDATED CASES

Case No. 11-2684-JWL

Case No. 11-2685-JWL

Case No. 11-2686-JWL

ORDER
In these consolidated cases, Sprint Communications Company, L.P. has brought

11-2684-JWL-747.wpd

patent-infringement claims against various defendants who provide Voice over Internet
Protocol (VoIP) services to local cable companies. Sprint alleges that defendants’ VoIP
technology infringes twelve of its patents. Sprint previously filed a motion to compel Time
Warner Cable, Inc. (TWC) to produce documents and testimony TWC had withheld as
protected by the attorney-client privilege.1 This court denied that motion without prejudice,
instructing the parties to engage in additional meet and confer efforts.2 Sprint then filed the
motion presently before this court (ECF doc. 747). In this renewed motion to compel, Sprint
claims the parties engaged in additional meet and confer efforts but are at an impasse. For
the reasons stated below, the motion is granted in part and denied in part.
In the present motion, Sprint asks this court to compel Comcast Communications,
LLC to produce several documents. In its response, Comcast claims the matter is much
narrower because it turned over additional documents, but simply forgot to delete those
documents from its privilege log, leading to some confusion. Comcast does admit, however,
that it continues to withhold seven communications Sprint seeks on the basis that those
communications are privileged. Because there are so few documents at issue, and because
of the difficulty in briefing the issues without risking potential waiver, Comcast stated it did
not oppose Sprint’s request that the remaining disputed communications be submitted to the
court for in camera review.

1

ECF doc. 603.

2

ECF doc. 700.

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2

By way of background, in August 2007, Comcast, Cox and Time Warner Cable
(TWC) jointly retained the law firm of Dreier, LLP as legal counsel to look into the
proceedings in a then-pending Kansas case, Sprint v. Vonage, 05-cv-2433-JWL (the prior
case). Sprint v. Vonage concerned some of the same “voice over packet” patents at issue in
the present case. Comcast claims that the legal advice included an oral opinion on the subject
of the validity of the patents asserted by Sprint in the litigation.3
In June 2014, Comcast learned that it had inadvertently produced an email from Drier
that Comcast, TWC and Cox believed to be privileged. Sprint moved compel the production
of that email, arguing that it was not a confidential communication. This court ruled that the
email was not privileged. Based on that ruling, Comcast turned over additional documents.
Sprint then filed a motion to compel, which this court denied without prejudice due to the
parties’ failure to meet and confer. The parties met and conferred, and Comcast discovered
that many of the requested communications were incorrectly withheld, and produced them.
Sprint filed its present motion, and argues that the remaining documents should be
turned over because Comcast failed to establish that it shared a common legal interest with
Cox and TWC and that Comcast has failed to establish that the documents contain legal
advice. Comcast argues that Comcast, Cox and TWC were joint clients of Dreier with a
common legal interest, and that, as a result, their privileged communications are protected

3

ECF doc. 801 at 8.

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from disclosure under the joint client privilege.4
Sprint also claims that many of the relevant documents that Comcast has produced
remain in heavily redacted form, and that Comcast has provided no reason to exclude these
documents from the in camera review. With that in mind, Sprint asks this court to review
those documents for privilege as well. However, Sprint fails to identify the documents to
which it is referring. Because Sprint’s request - raised in its reply - is too vague for the court
to consider or grant, it is denied without prejudice.
Sprint also asks this court to make a threshold determination whether the joint-client
doctrine applies to the Dreier communications. The court declines to make such a broad
ruling, and will instead focus on the documents produced for its in camera review.
Federal law governs the application of the attorney-client privilege in patent
litigation.5 Under federal common law, the essential elements of the attorney-client privilege
are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5)
by the client, (6) are at his instance permanently protected (7) from disclosure by himself or

4

ECF doc. 801 at 12. When clients jointly retain an attorney on a matter of common
interest, joint client privilege operates to protect privileged communications among the
attorney and the joint clients from disclosure to third parties. See In re Teleglobe Comms.
Corp., 493 F.3d 345, 363 (3d Cir. 2007); Static Control Components, Inc. v. Lexmark Int’l,
Inc., 250 F.R.D. 575, 578 n.2 (D. Colo. 2007). However, the joint client exception has not
yet been recognized by the Tenth Circuit or the District of Kansas.
5

Fed. R. Evid. 501; High Point SARL v. Sprint Nextel Corp., No. 09-2269, 2012 WL
234024, at *5 (D. Kan. Jan. 25, 2012); New Jersey v. Sprint Corp., 258 F.R.D. 421, 425 (D.
Kan. 2009).
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by the legal advisor, (8) except if the protection is waived.6 Although this description
suggests that the privilege only operates to protect the client’s communications to a lawyer,
the Tenth Circuit recognizes that a lawyer’s communication to a client is also protected if it
is “related to the rendition of legal services and advice.”7 The party asserting the privilege,
here Comcast, bears the burden of establishing the privilege applies.8
Here, Sprint argues that any attorney-client privilege was waived because the
communications between Comcast and the Dreier firm included third parties, i.e., TWC and
Cox. Comcast counters that the joint client privilege applies. As noted above, the court need
not reach the question of joint-client applicability to decide the current dispute.
This court has reviewed the documents at issue in this case. The emails are not
privileged. Simply stated, the documents do not reveal any client confidences, legal advice,
strategy, or attorney thought process. Rather, the emails - many of which contain the same
redacted information in the course of an email string - merely contain a general description

6

New Jersey v. Sprint Corp., 258 F.R.D. at 425.

7

Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1370 (10th Cir. 1997) (rejecting
narrower view that only communications that reveal confidences from the client are
protected); see also id. (holding that the Tenth Circuit’s view “protects from forced
disclosure any communication from an attorney to his client when made in the course of
giving legal advice”); C.T. v. Liberal School Dist., Nos. 06-2093, 06-2360, 06-2359, 2008
WL 217203, at *2 (D. Kan. Jan. 25, 2008) (“The privilege also protects advice given by the
lawyer in the course of representing the client.”); Heartland Surgical Specialty Hosp., LLC
v. Midwest Division, Inc., No. 05-2164, 2007 WL 2192885, at *5 (D. Kan. July 25, 2007)
(“The privilege applies to communications from the client to the attorney and from the
attorney to the client.”).
8

In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th Cir. 2010).

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of work completed and topics discussed. As such, the first round of documents produced for
the court’s in camera review must be produced.
There is one final issue to address. Comcast withheld one document from the court’s
in camera review that it claimed was raised for first time in Sprint’s reply brief. Specifically,
Sprint asked this court to review a PowerPoint presentation Comcast created that
memorialized the oral opinion from the Dreier firm. Comcast has refused to produce the
presentation on ground of attorney-client privilege. Sprint then emailed chambers, and copied
Comcast counsel, arguing the additional document withheld should be produced. This court
ordered the production of the document for in camera review. Comcast complied, but also
included a letter explaining the document had not been produced because it was untimely
raised for the first time in Sprint’s reply brief.
This court has reviewed the briefing and agrees with Comcast that the PowerPoint
presentation was not specifically addressed until Sprint’s reply brief. Even if it had been
timely raised, however, production would not be appropriate. The court has reviewed
D00005472, which is a copy of a presentation sent by Matthew Kaufman of Dreier LLP to
David Marcus, Comcast’s in-house patent counsel on October 11, 2007. The presentation
was created by attorneys at Drier and was presented to Comcast executives, and was not
shared with any third party. The document is clearly protected by privilege and need not be
produced.
IT IS THEREFORE ORDERED that Sprint’s motion to compel is granted as to the
production of the first set of emails produced to the court for in camera review. Sprint’s
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motion to compel is denied as to the PowerPoint presentation produced in the second email
to the court for in camera review.
Dated June 29, 2015, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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