Rupa Marya v. Warner Chappell Music Inc

Filing 101

NOTICE OF MOTION AND MOTION to Compel (i) DEFENDANTS TO PRODUCE WITHHELD DOCUMENTS; OR (ii) RELIEF FROM DISCOVERY CUTOFF TO CONDUCT COURT REVIEW IN CAMERA OF WITHHELD DOCUMENTS filed by plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. Motion set for hearing on 6/25/2014 at 09:30 AM before Magistrate Judge Michael R. Wilner. (Attachments: # 1 Memorandum Local Rule 37-2 Joint Stipulation, # 2 Exhibit A to Joint Stipulation, # 3 Exhibit B to Joint Stipulation, # 4 Declaration of Betsy C. Manifold in Support of Plaintiffs' Motion, # 5 Declaration of Kelly M. Klaus in Support of Defendants' Opposition to Plaintiffs' Motion, # 6 Exhibit A to Declaration of Kelly M. Klaus, # 7 Declaration of Jeremy Blietz in Support of Defendants' Opposition to Plaintiffs' Motion, # 8 Proposed Order Granting Plaintiffs' Motion)(Manifold, Betsy)

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FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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Interim Lead Class Counsel for Plaintiffs and Proposed Class

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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Plaintiffs,
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v.
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WARNER/CHAPPELL MUSIC, )
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INC., et al.,
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Defendants.
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GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,

Lead Case No. CV 13-04460-GHK (MRWx)
DECLARATION OF BETSY C.
MANIFOLD IN SUPPORT OF
PLAINTIFF’ NOTICE OF MOTION
AND MOTION FOR ORDER: (i)
COMPELLING DEFENDANTS TO
PRODUCE WITHHELD DOCUMENTS;
OR (ii) RELIEF FROM DISCOVERY
CUTOFF TO CONDUCT COURT
REVIEW IN CAMERA OF WITHHELD
DOCUMENTS
Date:
Time:
Judge:
Room:

June 25, 2014
9:30 A.M.
Mag. Michael R. Wilner
H-9th Floor

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I, Betsy C. Manifold, hereby declare as follows:

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1.

I am an attorney duly licensed to practice law in the States of California,

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New York, and Wisconsin, and before this Court. I am a partner with the law firm

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Wolf Haldenstein Adler Freeman & Herz LLP, interim lead class counsel for

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plaintiffs and the class. I have personal knowledge of the following facts, and if

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called upon to do so, I could and would competently testify as to them.

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2.

I submit this declaration in support of the motion by plaintiffs Good

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Morning To You Productions Corp., Robert Siegel, Rupa Marya d/b/a Rupa & The

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April Fishes, and Majar Productions, LLC’s (“Plaintiffs’”) for an order: (i)

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compelling defendants Warner/Chappell Music, Inc. and Summy-Birchard, Inc. (the

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“Defendants”), to produce all withheld documents, or in the alternative (ii) relief

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from the discovery cutoff for the Court to conduct in camera review of the withheld

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documents.

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Background

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3.

Plaintiffs commenced this now consolidated class action seeking, inter

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alia, a declaration, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-

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2202, that Defendants: (i) do not own any valid copyright to the world’s most

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popular song, Happy Birthday to You (the “Song”); (ii) that any copyright

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Defendants do own is limited in scope; and (iii) that the Song itself is in fact

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dedicated to public use and in the public domain (hereafter “Claim One”). See

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generally Pls.’ Fourth Amend. Consol. Class Action Compl. (Dkt. 95) (the “FAC”).

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4.

Pursuant to the Court’s suggestion and the parties’ subsequent

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agreement, Claim One of the FAC was bifurcated from the other claims and the

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scope of discovery is therefore limited to the issues raised by Claim One only. See

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Scheduling Order (Dkt. 92) annexed to the Joint Stipulation as Exhibit B.

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Plaintiffs’ Discovery Served on Defendants
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On February 12, 2014, Plaintiffs personally served the following

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discovery requests upon counsel for Defendants at their Los Angeles and San

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Francisco offices:
(1)

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Good

Morning

To

You

Productions

Corp.’s

Interrogatories to Defendant Warner/Chappell;

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(2)

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Plaintiffs’ First Set of Requests for Production of Documents to
Defendants (“Document Requests”); and

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(3)

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Plaintiff

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Plaintiffs’ First Set of Requests for Admission to Defendants.

Defendants’ responses to the discovery requests were due on or before

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March 14, 2014 (see Fed. R. Civ. P. 31, 33- 34), but Plaintiffs granted Defendants an

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extension of time to respond to all pending discovery requests. As is relevant here,

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Plaintiffs received Defendants’ Objections and Responses to Plaintiffs’ Document

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Requests on March 21, 2014 (“Defendants’ “Response”) with the understanding that

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Defendants would produce the responsive documents shortly thereafter.

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7.

Three weeks later, on April 11, 2014, Defendants forwarded to Plaintiffs

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approximately 1,103 pages of documents bearing production numbers WC000001-

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WC001103, which Plaintiffs received on April 14, 2014.

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Defendants produced multiple copies of the same the documents; thus, the document

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production actually was much smaller than 1,100 pages. None of the documents

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produced were in redacted form or identified any claim of privilege.

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8.

In many instances,

After almost 30 more days had passed, on May 9, 2014, Defendants

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supplemented their Response by producing to Plaintiffs another 805 pages of

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documents, bearing production numbers WC001104-WC001908, which included for

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the first time, redacted documents. Concurrently with its supplemental production,

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Defendants also produced a redaction log and a 42-page privilege log purportedly

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invoking attorney-client or work product protection for 157 discrete documents. A

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copy of the privilege log is attached as Exhibit A to the Joint Stipulation.

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Meet and Confer Letters
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On May 12, 2014, Plaintiffs’ counsel wrote to Defendants’ counsel

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describing the deficiencies in Defendants’ privilege log and requesting that the

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parties meet and confer about these issues during the conference of counsel

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previously scheduled for May 12, 2014. However, Defendants’ counsel refused to

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engage in any discussions regarding the deficiencies in Defendants’ privilege log

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until after Plaintiffs produced their own privilege log, which Plaintiffs agreed to

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provide on or before May 22, 2014. Thus, Defendants refused Plaintiffs’ request to

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discuss certain discrete items on May 12 (the third day after Plaintiff received the

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privilege log).
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Even after Plaintiffs delivered their privilege log on May 19, 2014,

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Defendants’ counsel again refused to meet and confer until May 22 – the 10th and

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last possible day on which they could do so.

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11.

Plaintiffs supplemented their letter request with another letter, dated

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May 13, 2014. That letter notified Defendants that Plaintiffs found that the vast

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majority of the entries on the privilege log do not contain sufficient information for

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Plaintiffs or the Court to assess whether the documents are, in fact, subject to the

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claimed privilege.

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12.

Plaintiffs further supplemented their May 12th and May 13th letters

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with a letter dated May 14, 2014, which asserted that Defendants had waived the

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privilege by their failure to provide a timely privilege log.

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L.R. 37-1 PRE-FILING CONFERENCE OF COUNSEL – MAY 22, 2014

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13.

On May 22, 2014, the parties held a teleconference to discuss the

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deficiencies in Defendants’ privilege log.

First, Plaintiffs explained that the

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privilege log was untimely and all the privileges asserted therein are therefore

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waived. Second, Plaintiffs explained that any purported privilege as to certain of the

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documents identified in the privilege log has been waived because the documents

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have been disclosed to third-parties. Third, Plaintiffs explained that the privilege log
is deficient in its description of the documents for which privilege is claimed, which
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deprives Plaintiffs and the Court of the ability to determine whether any of the

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documents are, in fact, privileged, and the privilege is therefore waived or the

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deficiency otherwise must be remedied. For example, (i) the privilege log fails to

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identify the authors or recipients for many of the documents; (ii) the privilege log

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does not identify the attorney or the client for many (if not most) of the documents;

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(iii) the phrase “relating to legal advice” used repeatedly in the privilege log is overly

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vague and ambiguous, and (iv) the privilege log fails to identify everyone who may

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have been shown the document in question or how they may relate to the Defendants

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and give Defendants grounds to claim privilege. And fourth, Plaintiffs explained that

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the privilege log failed to identify the specific document request(s) to which any of

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the purportedly privileged documents relate.

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Defendants disagreed that their privilege log was untimely and

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disagreed that they waived any privilege as a result of the allegedly untimely log.

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Defendants agreed to review only the purportedly privileged documents specifically

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listed by number in the letter from Plaintiffs’ counsel on May 12, 2014, to see if

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more non-privileged information can be provided, in which event Defendants will

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supplement the log. Defendants also agreed to consider identifying the attorney and

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client for documents as to which the attorney-client privilege is claimed, but only

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with respect to the “historical communications.” When asked whether they would

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identify everyone who has seen, or received the substance, of the withheld

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documents, Defendants said they would not be able to do so.

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Delay in Privilege Log is Prejudicial

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15.

Despite the focused discovery in general and the limited number of

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Document Requests in particular, Defendants unreasonably withheld their privilege

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log until May 9, 2014, nearly three months after Plaintiffs served their Document

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Requests and nearly 60 days after Defendants belatedly served their responses and

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objections to those Document Requests. Plaintiffs were never asked to consent to the

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untimely service of the privilege log, and they did not do so. Indeed, Plaintiffs were
promised the privilege log several times before it was produced.
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16.

Defendants produced in total fewer than 2,000 pages of documents,

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including multiple copies of many of the same documents. By contrast, they have

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withheld 157 purportedly privileged documents.

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By delaying their privilege log, Defendants have made it difficult, if not

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impossible, for Plaintiffs to evaluate their claimed privileges and seek the Court’s

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intervention in time to conduct follow-up discovery after the claimed privilege is

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adjudicated.

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18.

The prejudice to Plaintiffs is especially significant in this case because

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of the limited amount of non-document discovery that Plaintiffs will be able to

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obtain. Most of the pertinent facts took place many decades ago: some relevant facts

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occurred as early as the 1890s and most of the other relevant facts took place

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between 1934 and 1962.

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knowledge of relevant historical facts can be located and deposed.

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It is extremely unlikely that anyone with first-hand

I declare under penalty of perjury that the foregoing is true and correct.

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Executed this 4th day of June 2014, in the City of San Diego, State of California.

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By:

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BETSY C. MANIFOLD

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/s/Betsy C. Manifold

WARNER/CHAPPELL:20874.decl.bcm

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