United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
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). 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.
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 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 E-mail 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 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 ...