DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this breach of contract case are objections to the March 14, 2014 discovery ruling by Magistrate Judge Charles Day filed by Plaintiff Sky Angel U.S., LLC ("Sky Angel") (ECF No. 150), and a motion for a jury trial filed by Defendants Discovery Communications, LLC ("Discovery"), and Animal Planet L.C.C. ("Animal Planet") (ECF No. 108). Also pending is a motion to seal the motion for a jury trial filed by Defendants. (ECF No. 109). The issues have been fully briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the objections will be overruled, and the motion to seal
Sky Angel alleges the following facts in its complaint. (ECF No. 5). Sky Angel operates a subscription-based, multichannel video programming distribution service that delivers family-oriented video programming directly to the television sets of subscribers. Sky Angel enters into contracts with content providers to receive their programming via satellite earth stations and fiber optic connections. Sky Angel then formats the programming using Internet Protocol ("IP") technology; securely encrypts the programming; and ultimately transmits the programming via broadband Internet connections to the proprietary set-top boxes owned or leased by Sky Angel subscribers. The set-top boxes, which are secured by "industry standard encryption and conditional access technologies," decode the programming and send it to the subscriber's television set.
On October 3, 2007, Sky Angel entered into a contract with Discovery and Animal Planet ("the Agreement"). (ECF No. 5-1). Pursuant to the Agreement, Discovery and Animal Planet agreed to provide Sky Angel a non-exclusive license and right to distribute five channels via its "Affiliate Systems": Discovery Channel, Discovery Kids Channel, Discovery Home Channel, Military Channel, and Animal Planet (together, "the Services"). In exchange for this license and the right to distribute the Services, Sky Angel agreed to pay Discovery and Animal Planet monthly licensing fees on a per-subscriber basis.
Section 7 of the Agreement establishes certain requirements for Sky Angel's distribution of the Services. For example, Sky Angel must: (1) "distribute each Service in its entirety, without delay, interruption, alteration, addition, deletion or editing of any portion thereof"; (2) "encrypt each of the Service signals or use a substantially similar method of security to secure each of the Service signals from [Sky Angel's] point of receipt of the Service signals through the points of reception by the Service Subscribers"; and (3) "take all necessary precautions with respect to Affiliate Systems to ensure that the Services are received only by parties who are Service Subscribers." (ECF No. 5-1 §§ 7.1, 7.2). Sky Angel also agreed to conduct an audit to reveal unauthorized recipients of the Services upon Defendants' request. (Id. § 7.3).
The Agreement provided that it would expire on December 31, 2014. (Id. § 1.11). Section 12.1 of the Agreement, titled "Default and Termination," provides as follows:
The Agreement also contains a choice-of-law provision establishing that the parties' rights and obligations should be governed by and construed according to the laws of the State of Maryland, without regard to conflict-of-laws principles. (ECF No. 5-1 § 13.8).
According to the complaint, Sky Angel performed all of its obligations under the Agreement between October 2007 and April 2010. Sky Angel did not make any changes to its signal integrity, signal security, or distribution methodology during this time period. Sky Angel further alleges that, for the first two years of the Agreement, neither Discovery nor Animal Planet complained about any aspect of Sky Angel's performance or its distribution methodology. Discovery and Animal Planet also did not exercise their rights under Section 7 of the Agreement to request an audit of Sky Angel's subscribers. In fact, in August and September 2009, Discovery encouraged Sky Angel to add additional Discovery programming channels to its offerings.
Nonetheless, on January 22, 2010, Discovery sent a letter to Sky Angel on behalf of itself and Animal Planet stating that:
(ECF No. 5 ¶ 31). Sky Angel's response, dated March 4, 2010, stated that "Discovery has no reasonable basis for its belief that th[e] IP distribution methodology [used by Sky Angel for more than two years without objection] is in any way unsatisfactory" and also offered "to cooperate in establishing the security of its system to Discovery's reasonable satisfaction." (Id. ¶ 32). On March 19, 2010, Defendants responded but did not provide any additional details regarding their purported
In an effort to avert termination, Sky Angel filed an emergency petition with the Federal Communications Commission seeking to halt any disruption in programming signals. According to Sky Angel, Discovery and Animal Planet's opposition to this request stated that:
(ECF No. 5 ¶ 37) (second alteration in original). Thus, according to Sky Angel, Defendants "admitted" that "their termination of the Agreement was unrelated to Sky Angel's performance." (Id.). On April 22, 2010, Discovery and Animal Plan severed their programming connections with Sky Angel. As a result of this termination, Sky Angel asserts that it suffered substantial business losses, including costs associated with altering its promotional materials to reflect the discontinuation of the Services and a decrease in current and future subscribers.
On January 3, 2013, Sky Angel filed a complaint in this court asserting that Defendants' termination of the Agreement constituted a breach of contract. (ECF Nos. 1 & 5).
The right to a trial by jury is "not automatic." General Tire & Rubber Co. v. Watkins, 331 F.2d 192, 195 (4th Cir.1964). A party who intends to demand a jury trial must do so no later than 14 days after the last pleading directed to the issue is served. Fed.R.Civ.P. 38(b). If a jury demand is not properly served and filed, the right to a jury trial is waived. Fed. R.Civ.P. 38(d). Rule 39(b) governs where no timely demand has been made: "Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded."
Resolution of a Rule 39(b) motion is "committed to the discretion of the trial court." Malbon v. Pa. Millers Mut. Ins. Co., 636 F.2d 936, 940 (4th Cir.1980). The factors a district court should consider when weighing whether to grant a jury trial under 39(b) include:
636 F.2d at 940 n. 11 (citations omitted). Plaintiff contends that a fifth factor should be considered: the reason for the failure to make a timely demand. Some district courts within this circuit have considered this factor. See, e.g., SPE GO Holdings, Inc. v. Larosa, No. 1:09CV66, 2011 WL 96569, at *2 (N.D.W.Va. Jan. 11, 2011); A Helping Hand, LLC v. Balt. Cnty., Md., 295 F.Supp.2d 585, 589 (D.Md.2003); Gelardi v. Transamerica Occidental Life Ins. Co., 163 F.R.D. 495, 496 (E.D.Va.1995) (citing Vannoy v. Cooper, 872 F.Supp. 1485, 1489-90 (E.D.Va.1995)). While much of the harm caused to the opposing party and the court by a strategic delay in requesting a jury is captured by the second, third, and fourth Malbon factors, a party who takes a cynical approach to the Federal Rules should not be condoned. Defendants' explanation for their delay will be considered.
As to the first factor, Defendants argue that this is a straightforward breach of contract case, posing the question of whether Defendants justifiably terminated the Agreement. This case will involve witness credibility, a factor well suited for juries. Furthermore, Plaintiff is seeking both legal and equitable remedies in the form of damages and specific performance. A case involving legal remedies is appropriate for juries.
Plaintiff, in response, contends that the questions to be decided in this case are a mix of law and fact, specifically: Defendants' actions; the meaning of the Agreement's terms; and whether the parties' actions conformed with those terms. Furthermore, Plaintiff is seeking equitable relief, which counsels against a jury trial.
This first factor weighs in favor of denying Defendants' motion. Although some
The second factor concerns prejudice to the Plaintiff of granting a jury trial. Defendants contend that Plaintiff has not suffered any prejudice because the request was made well in advance of any trial, as the parties have not even filed their summary judgment motions. Defendants also contend that Plaintiff knew of Defendants' desire for a jury trial as evidenced by statements made in various filings concerned with the motions to compel. (See, e.g., ECF No. 72-22, at 10-11 ("Discovery reserves all of its rights to seek further relief from the Court related to Sky Angel's discovery violations, including but not limited to a jury instruction regarding the deletion of Mr. Scott's emails or other appropriate sanction.")).
Plaintiff responds that Defendants' unexpected request would cause serious prejudice. It contends that for more than eight months it has been planning discovery in anticipation of a bench trial and not a jury trial. Plaintiff provides the following examples of the prejudice it will suffer: (1) because the court needs no aid with legal principles, it chose not to retain an expert witness that could have assisted the jury in understanding certain issues in this case, such as the nature and role of most-favored-nation clauses in the television industry; (2) Plaintiff would have altered the focus of its depositions, focusing more heavily on issues that matter more to jurors such as a witness's background; and (3) Plaintiff chose not to pursue all discovery motions, but only those it believed it most needed to prove the case in front of the court, which can more easily identify the information truly relevant to the dispute. As an example, Plaintiff states that it did not compel non-parties to submit to depositions after those non-parties objected. Now that discovery has closed, Plaintiff cannot make the necessary adjustments to prepare for a jury trial and Defendants' motion should be denied on this basis alone.
Courts in this circuit presented with a similar situation to the instant case — request for a jury trial made after or just before the close of discovery — have been sympathetic to the nonmoving party's situation. See Macon v. E.I. DuPont, No. 3:10cv260, 2011 WL 1814925, at *3 (E.D.Va. May 11, 2011) ("To allow for a jury trial at this stage of discovery would prejudice [defendant], in that preparation and strategy required for bench and jury trials can vary greatly."); SPE GO Holdings, 2011 WL 96569, at *3 (plaintiff "justifiably relied on the assumption that the case would be tried to the Court throughout the motion practice and discovery, and that [plaintiff] has prepared its defense of this suit and coordinated its trial strategy accordingly. Therefore, this factor weighs against granting the motion."); Vannoy, 872 F.Supp. at 1490 ("The only possible prejudice that the court can discern is that the defendants may have conducted discovery on the belief that they were preparing
The third factor asks the court to consider the timing of the motion, i.e., whether it is late or early in the proceedings. Defendants requested a jury trial before summary judgment motions have been filed and a trial date has not been set. Plaintiff focuses on a different date: the closure of discovery. Because Defendants' request happened at the end of discovery, Plaintiff is unable to obtain additional discovery to cure the prejudice Defendants' proposed change of course would cause.
In this case, the second and third factors are tied together: the alleged prejudice is compounded by the fact that the motion was made without sufficient time to cure (absent the court extending discovery). Defendants' singular focus on what has not yet happened — summary judgment motions and setting a date for trial — fails to recognize that the timing question also asks what has already occurred: discovery, the contours of which affect how the parties prepare for trial. "The ability to properly prepare and the freedom from surprise on the eve of trial are two important principles to be protected by the consideration of timeliness of the 39(b) request." Kelly v. Sentara, No. 2:11cv672, 2012 WL 4340849, at *2 (E.D.Va. Sept. 20, 2012) (change from a bench trial to a jury trial more than three months before the close of discovery would cause no significant prejudice as defendant has ample time to propound supplemental discovery); A Helping Hand, 295 F.Supp.2d at 589 (jury request made when discovery was just beginning gives nonmoving party ample time to prepare for trial); Gilbarco, Inc. v. Tokheim Corp., No. 2:95CV00581, 1997 WL 608950, at *3 (M.D.N.C. Feb. 3, 1997). Only the second principle was fully preserved here. See Gilbarco, 1997 WL 608950, at *3 (even though jury request came more than a year after action was filed, the request was early in the trial preparation process as there was still time to take discovery); Vannoy, 872 F.Supp. at 1490 ("Because the discovery cut-off date has now past, there is no time for the defendants to do any additional discovery that might be more appropriate for a jury trial than for a bench trial."). The amount of harm caused to Plaintiff by Defendants' timing is connected to the prejudice it will suffer if Defendants' motion is granted. As discussed above, that prejudice is real, but it is not major. Consequently, this factor counsels slightly against granting the motion.
In sum, the four factors laid out by the Fourth Circuit in Malbon counsel against grant Defendants' motion. Consequently, the motion for a jury trial will be denied.
As to the fifth factor that some courts in this circuit have considered — reason for the delay — it too points against Defendants. Defendants acknowledge that they failed to file timely a jury demand pursuant to Rule 38. They explain that their original lead counsel (Akin Gump Strauss Hauer & Feld LLP) failed to include a jury demand and its current lead counsel (Weil, Gotshal & Manges LLP) proceeded on the mistaken belief that such a demand had been made. Defendants' counsel submits that it first learned of the failure to demand a jury when it was raised by Plaintiff's counsel at a deposition on February 11, 2014. Upon learning this, Defendants immediately requested a jury trial. Plaintiff views this explanation with extreme skepticism. It points out that Akin Gump is an experienced commercial litigator that knows how to request a jury trial. Furthermore, Weil Gotshal was added in October 2013. It is highly implausible that Weil Gotshal — also highly skilled and experienced — would fail to read the docket and initial pleadings and discover its error at that time, when there was still plenty of time remaining in discovery. Plaintiff's counsel goes on to state that it had multiple interactions with Defendants' counsel over the course of many months and at no time did Defendants' counsel indicate that they were seeking a jury trial. In response, Defendants' counsel submits that they were operating under the mistaken understanding that a jury trial had been demanded originally, resulting in their off-hand remarks identified above that refer to a jury. They state that when they came into the case, the parties were already enmeshed in discovery and there was no precipitating incident that would have caused counsel to discern whether there was a jury demand in a case concerning money damages.
The undersigned is not prepared to deem Defendants' counsel's actions as having been taken in bad faith, but the apparent inadvertence is disappointing. As an initial matter, Weil Gotshal's apparent assumption that any capable counsel would always demand a jury trial in a case such as this is unwarranted. As discussed above, trying a case before a judge as opposed to a jury comes with certain advantages such that it is not obvious that a jury trial is always the correct course of action. Defendants have presented no evidence that the decision to proceed with a bench trial was not a deliberate decision by Akin Gump that Weil Gotshal simply
In conclusion, Malbon's four factors counsel against granting Defendants' untimely motion for a jury trial. In addition, considering the reason for the delay does not change the result. Defendants' motion for a jury trial will be denied.
Plaintiff moved to compel documents withheld by Defendants as protected by attorney-client privilege. It sought emails for three categories of documents:
The parties fully briefed the issues, and Judge Day conducted a hearing on multiple pending discovery motions on March 14, 2014. Judge Day ruled from the bench, denying Plaintiff's motion to compel:
(ECF No. 154-1, at 59-61, Trans. 58:5-14, 59:1-60:17). On March 31, 2014, Plaintiff objected to Judge Day's order. (ECF No. 150). Defendants responded on April 14, 2014 (ECF No. 161), to which Plaintiff replied on April 24, 2014 (ECF No. 165).
Under 28 U.S.C. § 636(b)(1), non-dispositive pretrial matters may be referred to a magistrate judge for hearing and determination. A district judge may modify or set aside any portion of a magistrate judge's non-dispositive ruling "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." Id.; see also Fed.R.Civ.P. 72(a); Local Rule 301.5.a. "The [district] judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C). The "clearly erroneous" standard applies to factual findings, while legal conclusions will be rejected if they are "contrary to law." MMI Prods. v. Long, 231 F.R.D. 215, 218 (D.Md.2005).
Int'l Ass'n of Machinists & Aerospace Workers v. Werner-Masuda, 390 F.Supp.2d 479, 486 (D.Md.2005).
Plaintiff contends that both of Judge Day's conclusions — his primary conclusion that the documents are not relevant and his alternative conclusion that the documents are protected by the attorney-client privilege — were clearly erroneous and contrary to law.
Plaintiff argues that under federal discovery rules, it is entitled to "discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). The scope of relevancy is broad and in its answer Defendants expressly denied those portions of Plaintiff's complaint alleging that "Sky Angel's distribution methodology fully and objectively met the understanding and expectation of the parties and the contractual specifications; that "Discovery never made... a determination that the distribution methodology as defined in the Agreement was not satisfactory"; and that "[a]t no time did Discovery ... make any good faith efforts as required under the Agreement." (ECF No. 5 ¶¶ 54, 55, 57 (Complaint); ECF No. 26 ¶¶ 54, 55, 57 (Answer)). Plaintiff contends that Defendants have made clear that their principal theory against Plaintiff's breach of contract claim is that Defendants lacked a conclusive understanding of Plaintiff's distribution methodology at the time it entered into the 2007 agreement. The pre-agreement documents sought by Plaintiff concern due diligence performed by Defendants and go to the question of Defendants' knowledge of Plaintiff's distribution methods and are, therefore, relevant to the claims and defenses in this case. Plaintiff argues that because Judge Day failed to consider Defendants' defense theory, he failed to apply properly Rule 26(b)(1). Additionally, Plaintiff argues that the documents related to due diligence are relevant to Plaintiff's assertion that Defendants did not terminate the agreement in good faith or based on actual dissatisfaction with Plaintiff's distribution methodology. One of Plaintiff's theories is that its distribution methodology never changed and because of that, evidence that Defendants knew of this methodology when the agreement was signed supports the inference that the termination was not based on actual dissatisfaction. Plaintiff submits that it needs evidence as to what Defendants knew when the agreement was signed.
Defendants, in their opposition, do not make much of an effort to defend Judge Day's ruling on this ground. This is not surprising given that they did not make the relevance argument before Judge Day. Instead, Defendants spend the vast majority of their brief arguing that the documents are protected by the attorney-client privilege, only devoting the last three pages to Judge Day's principal ground for his ruling. They argue that the Agreement expressly prohibits Plaintiff from distributing via the Internet, but Defendants have "now conclusively shown that despite this contractual proscription, Sky Angel in fact utilized the public Internet to distribute the Services." (ECF No. 161, at 21). But they note that the merits of these contractual arguments are "best addressed during the summary judgment briefing." (Id. at 23).
Judge Day's primary basis for his order is clearly erroneous and contrary
(Id. at 16-18). Consequently, Plaintiff's allegations that Defendants did not terminate the agreement in good faith were viable and Plaintiff was entitled to nonprivileged materials that may bear on this issue. See Carr v. Double T Diner, 272 F.R.D. 431, 433 (D.Md.2010) ("The scope
The alternative ground for Judge Day's decision, and the ground that both parties spend the majority of their efforts disputing, is that the documents at issue are protected by the attorney-client privilege.
In Newman v. State, 384 Md. 285, 302-03, 863 A.2d 321 (2004), the Court of Appeals of Maryland set forth the relevant standard regarding when the attorney-client privilege applies:
(emphasis in original, first alteration added). "Because the application of the attorney-client privilege withholds relevant information from the fact finder, the privilege contains some limitations and should be narrowly construed." E.I. du Pont de Nemours, 351 Md. at 415, 718 A.2d 1129; see also In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir.1984) ("the privilege is to be strictly confined within the narrowest possible limits consistent with the logic of its principle"). Communications seeking business, rather than legal, advice are not protected. See E.I. du Pont de Nemours, 351 Md. at 417, 718 A.2d 1129. "The privilege protects confidential communications, but not the underlying factual information." Blanks v. State, 406 Md. 526, 539, 959 A.2d 1180 (2008). The party asserting the privilege "bears the burden of establishing its existence and applicability." E.I. du Pont de Nemours, 351 Md. at 406, 718 A.2d 1129.
In written discovery, ensuring that a privilege or protection is asserted properly in the first instance and maintained thereafter, involves several steps. "First, pursuant to Federal Rule of Civil Procedure 26(b)(5), the party asserting privilege/protection must do so with particularity for each document, or category of documents, for which privilege/protection is claimed." Elat v. Ngoubene, No. PWG-11-2931, 2013 WL 4478190, at *5 (D.Md. Aug. 16, 2013). A party can sustain this burden through a properly prepared privilege log that identifies each document withheld, and contains information regarding the nature of the privilege/protection claimed, the name of the person making/ receiving the communication, the date and place of the communication, and the document's general subject matter. See, e.g., Discovery Guideline, 10.d; Paul W. Grimm, Charles S. Fax, & Paul Mark Sandler, Discovery Problems and Their Solutions, 62-64 (2005) (suggesting contents of effective privilege log). If, after this has been done, the requesting party challenges the sufficiency of the asserted privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis — by affidavit, deposition transcript, or other evidence — for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden. Elat, 2013 WL 4478190, at *5. "If it makes this showing and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can rule on the merits of the claim or order that the disputed documents be produced for in camera inspection." Id. (emphasis added)
Plaintiff argues that Judge Day failed to follow this process by making a blanket finding of privilege without any evidentiary support instead of finding that each element of the privilege had been established for each document or category of documents. Plaintiff asserts that Judge Day should have either ordered the documents produced or submitted to him for in camera review.
Plaintiff's argument will be rejected. As Defendants point out, Judge Day considered deposition transcripts and the arguments of counsel. (See ECF No. 154-1, at 60, Trans. 59:21-22). While his ruling from the bench did not explicitly tick off each element of the attorney-client privilege, the transcript does not reveal that he failed to consider one or more elements
Plaintiff spends the bulk of its argument focusing on what it contends are the inadequacies in Defendants' privilege claims.
The first category includes a series of emails from September 2007, specifically an "email memorandum" authored by Mr. Charles Myers to Ms. Freeman and Mr. Miller concerning due diligence performed on Sky Angel (the "Myers Memo"), and related emails among these individuals (Privilege Log Entries 43, 44, 46, 47, and 83). Mr. Kaminski was not an addressee or a copyee of the Myers Memo; he was on the other disputed emails. Defendants presented the following timeline: On September 10, 2007, Mr. Kaminski sent an email to Mr. Myers requesting information. On September 14, the Myers Memo was sent to Ms. Freeman and Mr. Miller. Ms. Freeman then forwarded the email to Mr. Kaminski. Mr. Kaminski then responded directly to Mr. Myers and Mr. Myers responded to that message. (ECF No. 154-1, at 53, Trans. 52:2-7). Plaintiff does not dispute this timeline. It contends that the evidence demonstrates that the primary purpose of Mr. Myers' due diligence review of Sky Angel was to inform Discovery's business decision on whether to enter into an agreement with Sky Angel, not for legal advice.
Maryland courts have not explicitly stated that only communications whose primary purpose is legal advice are protected, the Maryland Court of Appeals appears to endorse this rule, citing favorably to Henson By and Through Mawyer v. Wyeth Laboratories, 118 F.R.D. 584, 587 (W.D.Va.1987), which stated that "[F]or the privilege to apply, the client's confidential communication must be for the primary purpose of soliciting legal, rather than business, advice." E.I. du Pont, 351 Md. at 416, 718 A.2d 1129.
Considering the context in which these communications were made, Plaintiff has not demonstrated that Judge Day's conclusion was clearly erroneous. Mr. Kaminski states that throughout his time as an in-house attorney for Discovery, he acted exclusively in a legal and not a business capacity. (ECF No. 147-1 ¶ 3; see also ECF No. 161-9, at 22, Trans. 180:1 (characterizing his role as "the legal representative for Discovery on the agreement and draftsperson of the agreement")). Ms. Freeman testified that she and Mr. Kaminski told Charlie Myers what Sky Angel had relayed to them and asked him to do due diligence to see if Discovery could move forward. (ECF No. 132-3, at 5-6, Trans. 141:20-142:4). Mr. Myers provided similar testimony. (ECF No. 130-2, at 14, Trans. 24:4-19). Mr. Kaminski had discussions with Mr. Myers regarding Sky Angel's technology done as part of Mr. Myers's due diligence. (Id. at 12-13, Trans. 137:5-138:19). Mr. Kaminski testified that a number of protections were put into the Agreement to protect Discovery based on representations made regarding Sky Angel's technology. (ECF No. 161-9, at 11, Trans. 115:2-10). Although it is true that the Myers memo was sent to both legal and nonlegal personnel, one plausible conclusion from the evidence here is that the review by the nonlegal personnel was part of the overall effort to gather information needed by Mr. Kaminski to provide legal advice. The cases Plaintiff cites to support the proposition that merely copying an attorney on an email or forwarding him an email does not make the document privileged involved situations where the information at issue was not gathered for a primarily legal purpose. See Simon v. G.D. Searle & Co., 816 F.2d 397, 403-04 (8th Cir.1987) ("[A] number of courts have determined that the attorney-client privilege does not protect client communications that relate only [to] business or technical data ..., [but] [c]lient communications intended to keep the attorney apprised of business matters may be privileged if they embody an implied request
The second category of documents Plaintiff seeks is a series of emails sent between October 1 and October 3, 2007 (Privilege Log Entries 21-23, 55, 89, 120-122). They are described as soliciting or providing information for purposes of legal advice regarding the Agreement, which was signed on October 3, 2007. Mr. Kaminski is an addressee or copyee on all but two emails: an email from Mr. Myers to Mr. Miller forwarding a solicitation of information for legal purposes, and Mr. Miller's response to Mr. Meyers (Entries 121 and 122). At the hearing, Defendants' counsel represented to Judge Day that the emails do not reflect an understanding of Sky Angel's distribution methodology, but are a solicitation of input in the days leading up to the signing of the Agreement. (ECF No. 154-1, at 54-55, Trans. 53:19-54:17). Plaintiff argues that Mr. Kaminski's statements are simply conclusory and do not provide a factual basis for the privilege assertions. There is no explanation for why or how any business or engineering personnel were acting on Mr. Kaminski's behalf or for purposes of drafting the agreement. Plaintiff also argues that the timing of these emails alone cannot confer privilege. In its original motion before Judge Day, it attached a string of emails reflecting the fact that the parties were discussing the Agreement for weeks and Discovery provided a draft agreement on October 1, 2007. It is unclear what Discovery's engineers would have to discuss in the days that followed other than their understanding of Sky Angel's system.
"Communications among non-attorneys in a corporation may be privileged if made at the direction of counsel, to gather information to aid counsel in providing legal services.... [I]n analyzing communications created at the direction of inhouse counsel, courts must be wary that the involvement of the attorney is not being used simply to shield corporate communications from disclosure." In re Rivastigmine Patent Litig., 237 F.R.D. 69, 80 (S.D.N.Y.2006); see also Williams v. Sprint/United Mgmt. Co., 238 F.R.D. 633, 638-39 (D.Kan.2006) (collecting cases). In his declaration, Mr. Kaminski states that "[a]s the attorney responsible for drafting the Agreement for Discovery, I was soliciting comments and input from others at Discovery during this period for the purpose of providing legal advice as relates to the Agreement. I utilized Ms. Freeman in order to solicit necessary input in this regard, and as such Ms. Freeman copied me on her emails." (ECF NO. 161-8 ¶ 11). Mr. Kaminski acknowledges that while he was not copied on every email, all information solicited or obtained was done on his behalf and at his request for the purposes of drafting the Agreement and providing legal advice. (Id. ¶ 12). The evidence submitted does not indicate that
Finally, Plaintiff objects to Judge Day's decision to deny the motion to compel as to three emails from September 2009 (Privilege Log Entries 19 and 20, and redaction to DIS-001027). The first email, dated September 17, 2009, is from Mr. Kaminski to Ms. Freeman and Mr. Broughton, Discovery's Director of Special Markets. It is described as a solicitation of information for purposes of legal advice regarding a draft amendment to the Agreement. The two withheld emails are from September 22 and 23, 2009 and are between Ms. Freeman and Mr. Broughton and reflect the solicitation and provision of information for purposes of legal advice regarding the draft amendment to the Agreement. At the hearing, Defendants' counsel characterized these emails as similar to the October 2007 emails in that they do not involve a discussion of Sky Angel's distribution methodology, but are a solicitation of input regarding a potential amendment to the Agreement. (ECF No. 154-1, at 55-56, Trans. 54:8-16, 55:5-18). In his declaration, Mr. Kaminski states that Discovery and Sky Angel were discussing a draft agreement in September 2009. He was Discovery's legal representative in regard to this amendment and was responsible for drafting it. To that end, he sent the draft amendment and solicited certain information about it to Ms. Freeman and Mr. Broughton. The emails between Ms. Freeman and Mr. Broughton reflect discussions concerning the draft amendment that Mr. Kaminski solicited for purposes of rendering legal advice. (ECF No. 161-8 ¶¶ 13-15).
Plaintiff argues that these emails bear on the issues of whether Discovery understood and was satisfied with Sky Angel's distribution methods immediately before the termination. The fact that Mr. Kaminski was not a direct recipient of the requested emails suggests that they were not made for the primary purpose of assisting him in providing legal services. Mr. Kaminski does not state that he was ever forwarded the emails exchanged between Ms. Freeman and Mr. Broughton and, with no attorney involvement, the emails cannot be protected by the attorney-client privilege.
As discussed above, intracorporate communications concerning information requested by a lawyer for the purposes of rendering legal advice can be protected by the attorney-client privilege. Judge Day's conclusion that the September 2009 emails are privileged was not clearly erroneous or contrary to law and Plaintiff's objections will be overruled.
Defendants have filed a motion to seal their motion for a jury trial and accompanying exhibits. (ECF No. 109). "The right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment." Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir.2004). "The common law presumes a right of the public to inspect and copy `all judicial records and documents,'" id. at 575 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)), although this presumption "can be rebutted if countervailing interests heavily outweigh the public interests in access." Id. (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988)); see also Nixon v. Warner Commc'ns, Inc., 435 U.S. 589,
In addition to the public's common law right of access, the First Amendment provides a "more rigorous" right of access for certain "judicial records and documents." Va. Dep't of State Police, 386 F.3d at 575-76; see also In re Application of the United States for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir.2013) (explaining the "significant" distinction between the two rights of access). Where the First Amendment does apply, access may be denied "only on the basis of a compelling governmental interest, and only if the denial is narrowly tailored to serve that interest." Stone, 855 F.2d at 180; see also, Doe v. Public Citizen, 749 F.3d 246, 265-66 (4th Cir.2014).
"For a right of access to a document to exist under either the First Amendment or the common law, the document must be a `judicial record'" in the first instance. In re Application, 707 F.3d at 290. The Fourth Circuit recently held that judicially authored or created documents are "judicial records," as are documents filed with the court that "play a role in the adjudicative process, or adjudicate substantive rights." Id. (citing Rushford, 846 F.2d at 252; In re Policy Mgt. Sys. Corp., 67 F.3d 296 (4th Cir.1995) (unpublished table decision)).
Thus, as a substantive matter, when a district court is presented with a request to seal certain documents, it must determine two things: (1) whether the documents in question are judicial records to which the common law presumption of access applies; and (2) whether the documents — if judicial records — are also protected by the more rigorous First Amendment right of access. In re Application, 707 F.3d at 290; see also Va. Dep't of State Police, 386 F.3d at 576.
The sealing of any documents filed with the court must also comport with certain procedural requirements. First, the non-moving party must be provided with notice of the request to seal and an opportunity to object. In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir.1984). This requirement may be satisfied by either notifying the persons present in the courtroom or by docketing the motion "reasonably in advance of deciding the issue." Id. at 234. In addition, "less drastic alternatives to sealing" must be considered. Va. Dep't of State Police, 386 F.3d at 576; see also Local Rule 105.11 (requiring any motion to seal to include both "proposed reasons supported by specific factual representations to justify the sealing" and "an explanation why alternatives to sealing would not provide sufficient protection"). Finally, if sealing is ordered, such an order must "state the reasons (and specific supporting findings)" for sealing and must explain why sealing is preferable over its alternatives. Va. Dep't of State Police, 386 F.3d at 576.
It is not necessary to reach the question of whether the documents at issue satisfy either the common law or First Amendment right of access (or whether any right
For the foregoing reasons, Defendants' motion for a jury trial will be denied. Plaintiff's objections will be overruled.
This argument will be rejected and the declaration will be considered. As Defendants point out, the deposition occurred over six years after the correspondence in question was written and Mr. Kaminski was testifying without the aid of the disputed emails. In his declaration, by contrast, Mr. Kaminski was able to review and draw upon those emails. This is not such a flat contradiction to invoke the sham affidavit rule, but to the extent that it is, the discrepancy is adequately explained.
