UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) FIBERLIGHT, LLC, ) ) Plaintiff/Counter-Defendant, ) ) v. ) Civil Action N o. 16-2248 (ESH) ) WASHINGTON METROPOLITAN ) AREA TRANSIT AUTHORITY, ) ) Defendant/Counter-Plaintiff. ) ___________________________________ )

MEMORANDUM OPINION AND ORDER Following a telephone conf erence call on October 11, 2017, the Court ordered briefing on the question of whether defendant WMATA had properly redacted p ortions 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 Fi berLight 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 al low the redactions.
BACKGROUND In the above-captioned case, Fiber Light 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 Re port”).) It “comprises a2 series of findings and recommendati ons regarding the current st atus 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 redacte d the entirety of subsection A of Section IV, which is en titled “Legal Concerns.” ( Id . at 4-5.) After FiberLight raised an objection to the redact ion of Section IV.A, t he Court ordered W MATA 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 redacti on of Section IV.A is proper eit her because (1) the entire Kingston Report, including the m aterial in Section IV.A., is ir relevant; or (2) the material in Section IV.A is protected by the a ttorney-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 Kingst on Report is not relevant because “[u]nder FiberLight’s theory of the case, the sole issue in this matter is the accura cy of WMATA’s representation in the License Agreement that it ‘has the power and authority to own a nd 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)), w hereas the subject of the Kin gston Report is “‘the current status and potential for future de velopment of the [WMATA] fibe r optic telecommunications system.’” ( Id . (quoting Kingston Report at 2).) FiberLight’s response is th reefold: (1) that WMATA “conceded the Report’s re levance” by producing it; (2) th at the Kingston Report is relevant because it “addresses WM ATA’s authority to enter into other License Agreements”; and (3) even if the Kingston Report relates only to WMATA’s “own” f iber optic system, it is relevant because “[t]he issue of w hether WMATA’s fiber is being used for its own transit or3 related purposes is at issu e in the litigation ( e.g., the License Agreement provides fiber to WMATA for its own use).” ( FiberLight Mem. at 2.) WMATA’s arguments are persua sive. First, FiberLight cites no authority for the proposition that production of a doc ument is a concession of it s relevance, especially with respect to the redacted p ortions of a document. Second, FiberLight provides no citation to support its content ion that the Kingston Report “addresses WMATA’s authority to enter into other License Agreem ents,” and the Court’s review of the Kingston Report reveals only two mentions of “license ag reements,” neither of which supports FiberLight’s character ization. The first mention of a “license agreement” is a “recommendation” that WMATA “[i]m pose a minimum six month morat orium that prohibits execution of any license agreemen ts between WMATA and telecommu nications carriers for access into the Authority’s rights-of-way (ROW)” (Kingston Repo rt at 2), which says nothing about WMATA’s “ authority to enter into other License Agr eements.” The second reference is redacted because it appears i n Section IV.A, but the Court has reviewed it and c onfirmed that it too has nothing to do with WMATA’s “authority” to enter into ot her license agreements. Finally, FiberLight’s only cita tion to support its contention that “[t]he issue of whether WMATA’s fiber is being used for i ts own transit or related purp oses is at issue in the litigation” is to paragraph 59 of the Amended C omplaint, but paragraph 59 d oes 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 Amende d Complaint, which appears und er the heading “WMATA Has Not Cited to Authority Granti ng It Ownership of the Leased Rights-of-Way,” states in its entirety: Likewise, WMATA has cited to Fed eral Transit Authority (“FTA”) documents to justify the leasing of real prope rty in the tunnels. But of cou rse FTA regulations encouraging the incidental use of real property only apply to r eal property owned by WMATA, not to the public right s-of-way, the unmitigated use of which is4 FiberLight will provide WMATA w ith dark fiber for WMATA’s own u se ( see License Agreement, art. 3.4), but FiberL ight’s breach of contract claim s 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 implicate s the following Articles of the License Agreement: Artic le 1, Article 14.1, A rticle 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 w ith WMATA that the Kingston Rep ort is not relevant to the present litigation.
B. Attorney-Client Privilege In the alternative, WMATA argue s that the redacted material is protected by the attorneyclient privilege. The Court agr ees. The Kingston Report is de signated on its face as including attorney-client information, the section containing the redacte d material is entitled “Legal Concerns,” and the Court’s revie w confirms that it reflects the views of WMATA legal counsel regarding potential le gal issues that coul d arise from the deve lopment and expansion of WMATA’s own telecommunications system. Under F.T.C. v. GlaxoSmithKline , 294 F.3d 141, 148 (D.C. Cir. 2002), the shari ng of such privileged informatio n 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 a rea concerns the post construction management of property acquired for the facility during project development to ensure that it is properly maintained and operat ed efficiently for the benefit of the transit sy stem.” FTA Circular 5010.1d, Page IV-10, Nov. 1, 2008 (emphasis added). Such regul ations may apply to property a lready acquired by WMATA, but they do not confer ow nership on WMATA of the publ ic rightsof-way. (Am. Compl. ¶ 59.)5 the privilege. Accordingly, the C ourt concludes that WMATA pro perly withheld Section IV.A of the Kingston Report pursuant to the attorney-client privileg e. CONCLUSION Having concluded that the Kingst on Report is not relevant to t he present litigation or, in the alternative, that Section I V.A. is protected by the attorne y-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