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

Filing 836

MEMORANDUM AND ORDER denying 749 Sealed Motion. Signed by Magistrate Judge James P. O'Hara on 7/2/2015. (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.,
)
)
Defendants.
)
_____________________________________ )
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SPRINT COMMUNICATIONS CO., L.P.,
)
)
Plaintiff,
)
)
v.
)
)
CABLE ONE, INC.,
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)
Defendant.
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_____________________________________ )
SPRINT COMMUNICATIONS CO., 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

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

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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. In this motion to compel, Sprint seeks all
documents and testimony bearing on the reasonableness of a claim by Time Warner Cable,
Inc. (“TWC”) that contracts with Sprint permitted TWC to “go it alone” free of patent suit,
and all documents and testimony bearing on whether TWC believed Sprint’s patents could
successfully be asserted against TWC (ECF doc. 749). For the reasons stated below, Sprint’s
motion is denied.
TWC has claimed the requested documents are protected by attorney-client privilege.
In its motion, Sprint argues that TWC waived the privilege by allegedly putting their
attorneys’ advice at issue through equitable estoppel defenses and the requisite element of
reliance.
Sprint previously filed a motion to compel TWC to produce the same documents at
issue in the present motion.1 The court denied that motion without prejudice because Sprint
failed to comply with the letter and spirit of the meet-and-confer requirements of Fed. R. Civ.
P. 37(a)(1) and D. Kan. Rule 37.2.2 However, the court noted:
Should the parties be unable to resolve the disputes raised in Sprint’s motion
after an honest, good-faith effort, and should Sprint re-file the motion (the
timeliness of which the court will not decide today), Sprint should address
why its arguments are not precluded by the court’s April 16, 2015 order in

1

ECF doc. 603.

2

ECF doc. 700.

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Sprint v. Comcast, Case No. 11-2684 (ECF doc. 698).3
The court’s April 16, 2015 order denied Sprint’s motion to compel against Comcast Cable
Communications, LLC, Comcast IP Phone, LLC, and Comcast Phone of Kansas, LLC,
(together, “Comcast”). In that motion, Sprint set forth an argument against Comcast that is
nearly identical to the one it asserts here and in its prior motion. Specifically, Sprint sought
documents that Comcast claimed were privileged, arguing that Comcast waived the privilege
by allegedly putting their attorneys’ advice at issue through their equitable estoppel defense
and reliance. The court denied Sprint’s motion, rejecting Sprint’s underlying contention that
pleading a claim or defense that has “reasonableness” or “reliance” as a necessary element
places the advice of counsel “at issue.” Although the court found Comcast did not place its
counsel’s opinions at issue merely by asserting reasonable reliance on Sprint’s conduct, the
court warned Comcast that if it affirmatively and voluntarily injected the reliance-on-counsel
issue at trial or in subsequent briefing to the court that the court would revisit the issue.
In this renewed motion to compel, Sprint claims the parties engaged in additional
meet-and-confer efforts but are at an impasse. Sprint asks the court to find that TWC’s
defenses resulted in an at-issue waiver, and order TWC to produce the documents at issue.
Alternatively, Sprint argues that even if the at-issue waiver has not occurred, TWC should
still be required to produce the documents because TWC failed to substantiate its privilege
claims with a proper privilege log. Sprint also asks for an in camera review of the

3

ECF doc. 700.

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documents, or an order barring TWC from putting on evidence of reliance, as it should not
be allowed to argue an equitable claim while allegedly suppressing harmful facts it put at
issue.
Timeliness of Sprint’s Motion
In the order denying Sprint’s initial motion to compel for failure to confer, the court
noted that it would address whether a future motion would be timely at the time of re-filing.
Sprint claims that its motion is timely because its arguments are renewed by TWC’s
continued tardy privilege logs and because of a strong judicial preference to resolve issues
on the merits. Sprint points out that its original motion was timely, and that this court invited
it to re-file its motion after additional meet and confer efforts. Sprint does recognize,
however, that the court stated that it would examine the timeliness of any subsequent motion
once filed. Sprint argues that its motion is timely because TWC did not produce the privilege
log of its head patent counsel - Andy Block - until March 27, 2015, after the close of
discovery and on the due date for Sprint’s reply brief on its original motion to compel. Sprint
argues that this court thus must resolve the arguments as to the log at issue, and that there is
no prejudice to TWC if the court extends that decision to entries in previous logs.
TWC argues Sprint’s motion is untimely. TWC claims Sprint has been aware of the
bases for TWC’s equitable defenses since at least March 29, 2014 and that it has been left
in limbo for several months due to Sprint’s delay.
Although a close call, the court tends to agree that the motion is untimely. It was
Sprint’s own failure to comply with the meet-and-confer requirements that caused its initial
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motion to be dismissed. However, due to the complex nature of this case and the substantial
briefing involved, this court will nevertheless address the merits of Sprint’s motion.
Sprint’s Motion is Precluded By This Court’s Prior Comcast Ruling
In the order denying Sprint’s previous motion to compel against TWC, the court
ordered Sprint to address why its arguments are not precluded by the April 16, 2015 order
in Sprint v. Comcast, Case No. 11-2684 (ECF doc. 698). By way of background, on the same
day Sprint moved to compel against TWC, Sprint also brought a substantively identical
motion to compel against Comcast. Similar to Sprint’s argument with respect to TWC in the
motion before this court, Sprint argued Comcast waived privilege protection as to certain
documents by putting its communications with counsel “at issue” and sought in camera
review of the documents.
As noted earlier, the court denied Sprint’s motion against Comcast, and held Comcast
had not waived privilege. The court rejected Sprint’s argument that Comcast put its
counsel’s advice at issue by pleading a necessary element of its estoppel defense. Although
Comcast’s state of mind, beliefs, and knowledge” were deemed relevant to Comcast’s
affirmative defenses, it simply was not inextricably merged with the elements of Sprint’s
case and Comcast’s affirmative defense. As such, the court held Comcast could establish the
element of reasonable reliance with evidence other than its counsel advice and further noted
that Comcast had affirmatively stated it would not offer or rely on the substance of any legal
advice or privileged communications to demonstrate its reliance or reason for believing that
Sprint did not intend to sue Comcast.
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Sprint argues this motion is distinguishable from the Comcast ruling. First, it claims
the ruling was incorrect, as noted in its objections to that order it filed with the presiding U.S.
District Judge, John W. Lungstrum. Notably, however, Judge Lungstrum overruled Sprint’s
objections.4
Sprint also argues that even under the court’s reasoning in Comcast’s case, TWC has
waived privilege. Specifically, Sprint argues the facts set forth by TWC to prove its theories
are inextricably merged with legal advice. TWC counters that Sprint simply sets forth the
same arguments already rejected by the court in the Comcast ruling. Notably, TWC claims
that just like Comcast, TWC will not offer or rely on any legal advice or communications to
demonstrate its reliance or its reasons for believing Sprint did not intend to sue TWC on
Sprint’s patents. As such, TWC argues Sprint is not entitled to the production of documents
solely as a means of checking its statements.
Sprint also tries to distance itself from the Comcast ruling by claiming that while one
of Comcast’s witnesses made only a vague and limited reference to the involvement of
attorneys, there are more connections with TWC. For example, Sprint argues that the same
TWC employees who relied on Sprint’s conduct to believe Sprint would not sue are also on
TWC’s privilege log. Sprint also takes issue with the fact that TWC listed its in-house
counsel as one of many who allegedly relied on Sprint’s conduct as a basis not to be sued.
TWC counters that while there was at least a brief, vague reference in Comcast, Sprint cannot

4

ECF doc. 831.

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point to any reference to counsel’s opinions with respect to the TWC-Sprint contracts. TWC
also argues that the Comcast ruling also involved witnesses who appeared on the privilege
log, and that the documents were still not ordered disclosed. Finally, TWC argues that the
mere fact that it listed its in-house counsel as one of several employees misled by Sprint does
not support Sprint’s broad argument that the privilege was waived. TWC asserts that
Comcast’s in-house counsel also testified, and thus any reference to its in-house counsel is
not distinguishable from the Comcast ruling.
The court has reviewed its prior ruling and the extensive briefing involved in the
present matter. Quite simply, Sprint has failed to distinguish its motion against TWC from
the court’s prior Comcast ruling. In that ruling, this court analyzed the elements of equitable
estoppel as well as the legal analysis for the attorney-client privilege and waiver. The court
incorporates its prior ruling by reference. For the reasons set forth in its earlier ruling as to
the motion to compel against Comcast (ECF doc. 698) and Judge Lungstrum’s opinion
affirming that ruling (ECF doc.831), Sprint’s motion to compel is denied.
In Camera Review is Not Necessary
Sprint requests an in camera review of the withheld documents and claims that its
request is distinguishable from those rejected by this court in the Comcast matter because
TWC continues to make wrongful privilege claims despite significant guidance from this
court. As an example, Sprint points to an e-mail listed in a privilege log that it questioned
during the meet-and-confer process. TWC ultimately voluntarily produced the e-mail, which
Sprint claims did not meet the standard for attorney-client privilege. Sprint argues that there
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is no way to tell how many privilege claims TWC is overselling on documents.
TWC counters that in camera reviews should not be routinely undertaken, particularly
in a case with substantial documents. TWC further argues Sprint failed to identify each
specific document it seeks to have reviewed, and that its broad and generalized arguments
are not sufficient to warrant in camera review.
Sprint’s request for an in camera review is denied. Sprint’s example in its brief only
establishes that TWC voluntarily turned over a communication it deemed not to be
privileged. Thus, at this time (though without foreclosing the future possibility), the court
declines to review any documents in camera.
Conclusion
At this juncture, the court finds that TWC did not place its counsel’s opinions at issue
by asserting reasonable reliance on Sprint’s conduct. However, should TWC affirmatively
and voluntarily inject the reliance-on-counsel issue at trial or in subsequent briefing to the
court, the issue of whether TWC implicitly waived the privilege will be revisited.
IT IS THEREFORE ORDERED:
1.

Sprint’s motion to compel on the issue of “at issue waiver” is denied.

2.

Sprint’s request for complete in camera review of documents withheld by
TWC is denied.

Dated July 2, 2015, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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