Automattic Wins Privilege Fight Over Pre-Lawsuit Trademark Strategy Slack Messages

# Automattic Wins Privilege Fight Over Pre-Lawsuit Trademark Strategy Slack Messages > [!question] Lingering Questions > - Why did WP Engine affirmatively decline the waiver argument the judge all but invited? Deliberate appellate-preservation tactic, or a real miscalculation? > - How does the trial judge weigh Mullenweg's "absolute power in the WP ecosystem" / "control of everything" language — as an admission bearing on market power, or as dismissible puffery? > - Does the trademark counterclaim's decade-of-tolerance timing argument function as laches decidable on the pleadings, or is it reserved for trial as a fact question? > [!tip] Article Ideas > - A governance-clinic case study on privileged-channel hygiene for open-source org leaders: channel naming, who's actually in the room, and the waiver risk of selective production. > [!link] Cross Reference > - [[3. Resources/Permanent Notes/BDFL Litigation Necessarily Implicates Personal Corporate and Foundation Roles Because the BDFL Has Concentrated Them]] — this week's rulings are a fresh data point for that existing thesis: even a privileged channel discussion of trademark strategy sits inside the same concentrated-authority structure > - [[3. Resources/Permanent Notes/Concentrated Authority Without Accountability Produces the Same Failure Patterns Across Religious and Software Ecosystems]] — the "absolute power" / "control of everything" admissions are exactly the pattern that note tracks across domains > [!quote] Vocabulary > - **Clawback** — the procedure (FRE 502) by which a party retrieves accidentally-disclosed privileged material from the opposing side > - **Waiver** — here, the theory that selectively producing some documents from a privileged channel forfeits privilege over the rest of it; the one theory the judge said could have pierced Automattic's privilege claim ## Author's thesis A busy court week resolved on procedure, not merits: Automattic clawed back 135 of 147 pre-conflict Slack messages under attorney-client privilege — a ruling that, per the reporting, may have turned less on the law than on WP Engine's tactical choice not to argue waiver, the one theory the magistrate judge said would have pierced the claim. ## Key arguments (≤3) 1. **The privilege win may hinge on an argument not made** — the judge said waiver was the only path to pierce privilege; WP Engine's counsel explicitly declined to argue it. 2. **Discovery targets keep tracing back to concentrated authority** — the channel discussed trademark strategy among Mullenweg and non-lawyer executives around counsel's work product, reflecting how tightly personal, corporate, and foundation roles are fused in this governance structure. 3. **The antitrust claims now lean on Mullenweg's own words** — WP Engine's amended complaint uses discovery-sourced quotes ("absolute power in the WP ecosystem," "in control of everything" on wordpress.org) to plead the market-power element that sank the first attempt. ## Claim atoms ### Privilege ruling may turn on the argument not made > [!quote] ID:rw_source > the outcome may have turned on what WP Engine didn't argue **Context & use**: Article body, on the Bloomberg Law-sourced analysis of the hearing. The decisive procedural lesson: WP Engine declined the waiver argument the judge said was the only path to pierce privilege. **Tags**: #xref #articleseed  ### Waiver was the lone path to pierce privilege > [!quote] ID:rw_source > Krishnan said waiver was the one way he would have "pierced the privilege." **Context & use**: Article body, quoting the magistrate judge directly. Shows the judge openly signaling the single available theory, which WP Engine then disclaimed. **Tags**: #xref  ### Executives leaned on Mullenweg's "absolute power" admission > [!quote] ID:rw_source > "absolute power in the WP ecosystem" and being "in control of everything" on wordpress.org **Context & use**: Article body, on WP Engine's third amended antitrust complaint sourced from discovery. WP Engine uses Mullenweg's own words to plead the market-power element it previously failed to plead. **Tags**: #xref #addendum  ### Most of a pre-conflict strategy channel stays sealed > [!quote] ID:rw_source > Of the 147 messages in the Slack channel, Automattic is asserting privilege over 135. **Context & use**: Article body, quantifying the clawback scope. A concrete metric of how much pre-lawsuit trademark-strategy communication is now protected. **Tags**: #xref  ## Permanent candidates - **Declining the one argument a judge signals is dispositive decides the matter as surely as losing it** — the strongest, most general candidate ([[#H1]] + [[#H2]]). Promoted below. - The "absolute power" admission ([[#H3]]) is fresh evidence for the existing [[3. Resources/Permanent Notes/BDFL Litigation Necessarily Implicates Personal Corporate and Foundation Roles Because the BDFL Has Concentrated Them]] thesis — connect rather than create a redundant note. ## Processing checklist - [ ] Pull the NDCal docket entry for Krishnan's clawback order to confirm bench vs. written ruling - [ ] Watch for Martínez-Olguín's written ruling on both motions to dismiss — the most consequential near-term document - [x] Connect into the relevant MOC — [[3. Resources/MOCs/Open Source Governance MOC]] - [x] Cross-linked to existing BDFL-litigation and concentrated-authority permanent notes rather than duplicated ## Metadata - Source: [[3. Resources/Readwise/Articles/Automattic Wins Privilege Fight Over Pre-Lawsuit Trademark Strategy Slack Messages, Court Set to Rule on Motions to Dismiss]] ## Links - [[3. Resources/MOCs/Open Source Governance MOC]] — the ongoing WP Engine v. Automattic litigation is this MOC's primary live governance case study