Fiberlight, LLC v. Washington Metropolitan Area Transit Authority ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________
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FIBERLIGHT, LLC, )
)
Plaintiff/Counter-Defendant, )
)
v. ) Civil Action No. 16-2248 (ESH)
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WASHINGTON METROPOLITAN )
AREA TRANSIT AUTHORITY, )
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Defendant/Counter-Plaintiff. )
___________________________________ )
MEMORANDUM OPINION AND ORDER
Following a telephone conference call on October 11, 2017, the Court ordered briefing on
the question of whether defendant WMATA had properly redacted portions of a document
produced by non-party Kingston Cole & Associates in response to a third-party subpoena duces
tecum from plaintiff FiberLight. (See Order at 1-2, ECF No. 49.) WMATA filed its
memorandum on October 16, 2017, ECF No. 51 (WMATA Mem.), and FiberLight filed its
memorandum on October 19, 2017, ECF No. 52 (“FiberLight Mem.”). Having considered these
memoranda, and for the reasons stated herein, the Court will allow the redactions.
BACKGROUND
In the above-captioned case, FiberLight alleges that WMATA has breached their 2006
License Agreement. The document at issue is a report that was prepared by Kingston Cole for
WMATA in 1999. (See Kington Cole & Associates, Report and Recommendations To The
Washington Area Metropolitan Area Transit Authority Regarding Strategic Development of
Telecommunications Opportunities at 1 (June 1, 1999) (“Kingston Report”).) It “comprises a
series of findings and recommendations regarding the current status and potential for future
development of [WMATA’s] fiber optic telecommunications system.” (Id. at 1.) Section IV of
the document is entitled “Problem Areas,” and WMATA has redacted the entirety of subsection
A of Section IV, which is entitled “Legal Concerns.” (Id. at 4-5.) After FiberLight raised an
objection to the redaction of Section IV.A, the Court ordered WMATA to produce an unredacted
version of the Kingston Report for the Court’s in camera review and held a telephone conference
call, which led to its order asking for further briefing.
ANALYSIS
WMATA asserts that the redaction of Section IV.A is proper either because (1) the entire
Kingston Report, including the material in Section IV.A., is irrelevant; or (2) the material in
Section IV.A is protected by the attorney-client privilege. (See WMATA Mem. at 1, ECF No.
51.) As explained infra, the Court agrees with WMATA on both points.
A. Relevance
WMATA argues that the Kingston Report is not relevant because “[u]nder FiberLight’s
theory of the case, the sole issue in this matter is the accuracy of WMATA’s representation in the
License Agreement that it ‘has the power and authority to own and operate the WMATA System,
and to lease conduit rights in the WMATA ROW to FiberLight,’” (WMATA’s Mem. at 3
(quoting Am. Compl. ¶¶ 10, 29)), whereas the subject of the Kingston Report is “‘the current
status and potential for future development of the [WMATA] fiber optic telecommunications
system.’” (Id. (quoting Kingston Report at 2).) FiberLight’s response is threefold: (1) that
WMATA “conceded the Report’s relevance” by producing it; (2) that the Kingston Report is
relevant because it “addresses WMATA’s authority to enter into other License Agreements”; and
(3) even if the Kingston Report relates only to WMATA’s “own” fiber optic system, it is
relevant because “[t]he issue of whether WMATA’s fiber is being used for its own transit or
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related purposes is at issue in the litigation (e.g., the License Agreement provides fiber to
WMATA for its own use).” (FiberLight Mem. at 2.)
WMATA’s arguments are persuasive. First, FiberLight cites no authority for the
proposition that production of a document is a concession of its relevance, especially with
respect to the redacted portions of a document.
Second, FiberLight provides no citation to support its contention that the Kingston Report
“addresses WMATA’s authority to enter into other License Agreements,” and the Court’s review
of the Kingston Report reveals only two mentions of “license agreements,” neither of which
supports FiberLight’s characterization. The first mention of a “license agreement” is a
“recommendation” that WMATA “[i]mpose a minimum six month moratorium that prohibits
execution of any license agreements between WMATA and telecommunications carriers for
access into the Authority’s rights-of-way (ROW)” (Kingston Report at 2), which says nothing
about WMATA’s “authority to enter into other License Agreements.” The second reference is
redacted because it appears in Section IV.A, but the Court has reviewed it and confirmed that it
too has nothing to do with WMATA’s “authority” to enter into other license agreements.
Finally, FiberLight’s only citation to support its contention that “[t]he issue of whether
WMATA’s fiber is being used for its own transit or related purposes is at issue in the litigation”
is to paragraph 59 of the Amended Complaint, but paragraph 59 does not allege anything having
to do with WMATA’s use of its own fiber.1 The License Agreement does provide that
1
Paragraph 59 of the First Amended Complaint, which appears under the heading “WMATA
Has Not Cited to Authority Granting It Ownership of the Leased Rights-of-Way,” states in its
entirety:
Likewise, WMATA has cited to Federal Transit Authority (“FTA”) documents to
justify the leasing of real property in the tunnels. But of course FTA regulations
encouraging the incidental use of real property only apply to real property owned
by WMATA, not to the public rights-of-way, the unmitigated use of which is
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FiberLight will provide WMATA with dark fiber for WMATA’s own use (see License
Agreement, art. 3.4), but FiberLight’s breach of contract claims do not pertain to that aspect of
the agreement. (See First Am. Compl. ¶ 23 (“This case is, inter alia, a breach of contract action
involving WMATA’s breach of the License Agreement and implicates the following Articles of
the License Agreement: Article 1, Article 14.1, Article 20.1(c), Article 21.1, and Article 27.4.
WMATA has breached Article 14.1, Article 21.1, and Article 27.4.”).)
Accordingly, the Court agrees with WMATA that the Kingston Report is not relevant to
the present litigation.
B. Attorney-Client Privilege
In the alternative, WMATA argues that the redacted material is protected by the attorney-
client privilege. The Court agrees. The Kingston Report is designated on its face as including
attorney-client information, the section containing the redacted material is entitled “Legal
Concerns,” and the Court’s review confirms that it reflects the views of WMATA legal counsel
regarding potential legal issues that could arise from the development and expansion of
WMATA’s own telecommunications system. Under F.T.C. v. GlaxoSmithKline, 294 F.3d 141,
148 (D.C. Cir. 2002), the sharing of such privileged information with a consultant who needs
that information in order to complete a project for the company does not constitute a waiver of
conferred on public utilities like FiberLight. For example, FTA directives on
incidental use concern private and not public property: “This area concerns the
post construction management of property acquired for the facility during project
development to ensure that it is properly maintained and operated efficiently for
the benefit of the transit system.” FTA Circular 5010.1d, Page IV-10, Nov. 1,
2008 (emphasis added). Such regulations may apply to property already acquired
by WMATA, but they do not confer ownership on WMATA of the public rights-
of-way.
(Am. Compl. ¶ 59.)
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the privilege. Accordingly, the Court concludes that WMATA properly withheld Section IV.A
of the Kingston Report pursuant to the attorney-client privilege.
CONCLUSION
Having concluded that the Kingston Report is not relevant to the present litigation or, in
the alternative, that Section IV.A. is protected by the attorney-client privilege, the Court upholds
WMATA’s redaction of Section IV.A.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: January 18, 2018
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