Charter Communications is asking a state Supreme Court justice to block a request from the state Attorney General's Office to hand over communications between the internet and cable provider and a trade association.

Attorneys for Charter said in a recent letter to Manhattan Supreme Court Justice Peter Sherwood that those documents are protected under attorney-client privilege, and should not be made available to Attorney General Barbara Underwood in her lawsuit against the company.

The letter is a response to a decision in July by Sherwood to compel Charter to produce those documents. Sherwood told Charter in that decision that it either has to hand over the communications or demonstrate an attorney-client privilege.

The decision is part of ongoing litigation between Charter and the state over internet speeds and performance. The state sued Charter early last year for allegedly promising customers internet speeds it couldn't deliver.

Charter is represented by Christopher Clark, a partner at Latham & Watkins in Manhattan. The letter is from Jason Burt, counsel at the firm. Burt declined to comment.

Sherwood's decision was in response to a request from Assistant Attorney General Joseph Mueller in June. Mueller claimed Charter was wrongly withholding some of the documents based on attorney-client privilege after already sharing the communications with other parties.

“Under New York law, the disclosure of communications to third parties generally waives the attorney-client privilege and other privileges,” Mueller wrote. “That Charter freely circulated these communications to numerous unaffiliated companies waived any privilege that could have existed with respect to them.”

In the letter to Sherwood, Charter gave two examples of why the documents Underwood's office is requesting for litigation should be subject to attorney-client privilege.

The first, according to Burt, are communications between counsel for the Internet and Television Association, or NCTA, and in-house attorneys for Comcast and Time Warner Cable over the anticipated appeal of the Federal Communications Commission's Open Internet Order in the U.S. Court of Appeals for the D.C. Circuit. That litigation concerned the FCC's decision to enact net neutrality rules. The D.C. Circuit eventually upheld the rules, which were challenged by a group of internet service providers, including the NCTA.

Burt claimed that because the communications were between the NCTA's attorney and other attorneys, they are privileged.

“Charter respectfully submits that the withheld documents were properly designated as privileged, both because the communications reflect legal advice provided by the NCTA's counsel and under the common-interest doctrine as interpreted in Ambac v. Countrywide Home Loans, Inc.,” Burt wrote.

Burt is referring to the 2016 decision from the Court of Appeals in Ambac, which is separate from a different decision involving the same parties in 2018.

In the 2016 decision, former Court of Appeals Judge Eugene Pigott wrote that “where two or more clients separately retain counsel to advise them on matters of common legal interest, the common interest exception allows them to shield from disclosure certain attorney-client communications that are revealed to one another for the purpose of furthering a common legal interest.”

Burt wrote in his letter that the first set of documents applies to that standard because it concerns litigation that affects the common legal interests of the NCTA and its members.

Mueller had already addressed that argument in his June letter, saying the withheld communications they are seeking relate to lobbying efforts, not pending litigation. He said the documents should be made available because they are directly relevant to the state's case against the company.

“These communications also relate to technical (not legal) matters that are plainly relevant to allegations in this action,” Mueller wrote. He cited two emails to support his argument, though both are redacted.

Underwood's office is not specifically requesting documents on net neutrality, they said. They want Charter to hand over specific communications with the NCTA that the cable company believes to be privileged.

The second set of documents, according to Mueller, are approximately 100 communications between Charter and Comcast about their failed merger with Time Warner Cable. Charter, instead, merged with Time Warner Cable in 2016.

Burt wrote that those communications were also withheld based on attorney-client privilege “and/or work product protection, consistent with this Court's orders and Ambac.”

Mueller said the decision in Ambac actually contradicts Charter's effort to withhold those documents.

“The court in Ambac made clear that communications about a proposed or potential merger are not privileged because of the likelihood of regulatory scrutiny,” Mueller wrote.

The defendants in the case were Countrywide and Bank of America, which merged in 2008. The plaintiff, Ambac, had sought communications between the two after the signing of their merger plan but before the merger actually closed. Ambac claimed in the case that Countrywide had fraudulently misrepresented the quality of loans Ambac agreed to insure. Many of those loans failed during the financial crisis of the last decade.

Pigott wrote in the Ambac decision that communications concerning the merger were not considered privileged.

“Put simply, when businesses share a common interest in closing a complex transaction, their shared interest in the transaction's completion is already an adequate incentive for exchanging information necessary to achieve that end,” Pigott wrote.

Burt declined to say why Charter was seeking to withhold the communications from the attorney general as part of the case. The next appearance in the trial is Sept 11.