Rupa Marya v. Warner Chappell Music Inc

Filing 108

TRANSCRIPT for proceedings held on 06-06-2014; 2:01 P.M. Court Reporter/Electronic Court Recorder: Dorothy Babykin, Courthouse Services, phone number 626-963-0566. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 7/2/2014. Redacted Transcript Deadline set for 7/12/2014. Release of Transcript Restriction set for 9/9/2014. (Algorri, Miranda)

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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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RUPA MARYA,

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PLAINTIFF,
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V.
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WARNER CHAPPELL MUSIC, INC.,

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DEFENDANT.
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CV 13-4460-GHK(MRW)
LOS ANGELES, CALIFORNIA
JUNE 6, 2014
(2:01 P.M. TO 2:37 P.M.)

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TELEPHONIC HEARING

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BEFORE THE HONORABLE MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

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APPEARANCES:

SEE NEXT PAGE

COURT REPORTER:

RECORDED; COURT SMART

COURTROOM DEPUTY:

VERONICA MC KAMIE

TRANSCRIBER:

DOROTHY BABYKIN
COURTHOUSE SERVICES
1218 VALEBROOK PLACE
GLENDORA, CALIFORNIA
[phone]

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91740

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PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING;
TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

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APPEARANCES:
FOR THE PLAINTIFF:

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ
BY: BETSY C. MANIFOLD
ATTORNEY AT LAW
750 B STREET
SUITE 2770
SAN DIEGO, CALIFORNIA 92101

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FOR THE DEFENDANT:
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MUNGER TOLLES & OLSON LLP
BY: ADAM I. KAPLAN
MELINDA E. LE MOINE
ATTORNEYS AT LAW
355 SOUTH GRAND AVENUE
35TH FLOOR
LOS ANGELES, CALIFORNIA 90071

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I N D E X

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CV 13-4460-GHK(MRWX)

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PROCEEDINGS:

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JUNE 6, 2014

TELEPHONE CONFERENCE RE DISCOVERY MOTION

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LOS ANGELES, CALIFORNIA; FRIDAY, JUNE 6, 2014; 2:01 P.M.

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THE COURT:

ALL RIGHT.

GOOD AFTERNOON EVERYBODY.

THIS IS JUDGE WILNER IN LOS ANGELES.

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WE'RE ON THE RECORD IN MARYA OR -- WELL, LET'S CALL

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IT GOOD MORNING TO YOU VERSUS WARNER CHAPPELL MUSIC,

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CV 13-4460-GHK(MRWX).

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COULD I HAVE APPEARANCES FOR THE PLAINTIFF, PLEASE.

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MS. MANIFOLD:

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BETSY MANIFOLD, WOLF HALDENSTEIN, ON BEHALF OF THE

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GOOD AFTERNOON, YOUR HONOR.

PLAINTIFFS.

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THE COURT:

GOOD AFTERNOON.

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AND FOR THE DEFENSE.

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MS. LE MOINE:

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THIS IS MELINDA LE MOINE ON BEHALF OF THE

GOOD AFTERNOON, YOUR HONOR.

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DEFENDANTS FROM MUNGER TOLLES & OLSON.

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KAPLAN, ALSO FROM MUNGER TOLLES & OLSON.

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THE COURT:

GOOD AFTERNOON TO BOTH OF

YOU.

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ALL RIGHT.

AND WITH ME IS ADAM

I WANTED TO GET YOU FOLKS ON THE PHONE TO DISCUSS
THE MOTION THAT I RECEIVED EARLIER THIS WEEK.

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I WORK VERY HARD TO TAKE A LOOK AT EVERY PIECE OF

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PAPER THAT COMES THROUGH MY CHAMBERS IN MY CIVIL CASES, IN MY

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CRIMINAL CASES, IN MY CASES ON APPEAL FROM STATE COURT AND

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ADMINISTRATIVE AGENCIES JUST TO SORT OF SEE -- SEE WHAT'S

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GOING ON.

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AND WHEN I GET A DISCOVERY MOTION IN OUR COURT'S

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JOINT FORMAT I LIKE TO SPEND A LITTLE BIT OF TIME GOING

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THROUGH -- GOING THROUGH THE PAPERS -- EVEN THOUGH THEY'RE

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NOTICED FOR A HEARING SEVERAL WEEKS FROM NOW -- JUST TO TAKE

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A LOOK AT IT AND SEE WHAT'S REALLY GOING ON AND TO SEE

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WHETHER IT MAKES SENSE TO GET INVOLVED A LITTLE BIT EARLIER.

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SOMETIMES I PICK UP THE PAPERS AND I SEE SOMETHING

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KIND OF GLARING.

I SEE SOME CONDUCT THAT IS REALLY

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PROBLEMATIC AND IT WARRANTS GETTING INVOLVED QUICKLY.

AND I

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TEND TO HAVE PRETTY GOOD SUCCESS IN RESOLVING THOSE KINDS OF

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MOTIONS SHORT OF A HEARING.

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IN THIS CASE WHEN I LOOKED AT YOUR PAPERS I DID NOT

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HAVE ANYTHING OF REMOTE CONCERN ABOUT HOW THE MATTER HAS BEEN

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HANDLED.

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PAPERS AND SOME REALLY INTERESTING AND LEGITIMATE ARGUMENTS

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ON BOTH SIDES.

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TO THE CONTRARY, IT'S A VERY PROFESSIONAL SET OF

BUT I STILL FELT IT MIGHT BE APPROPRIATE GIVEN THE

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CIRCUMSTANCES HERE TO REACH OUT -- NOT TO GIVE YOU A RULING

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TODAY AND NOT NECESSARILY TO SOLICIT ARGUMENT FROM YOU TODAY.

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BUT, QUITE FRANKLY, SINCE YOU TOOK THE TIME AND TROUBLE AND

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CLIENT FUNDS TO PUT THESE PAPERS TOGETHER FOR THE PURPOSE OF

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HAVING ME RULE ON IT OR AT LEAST GIVE YOU MY THOUGHTS, IT MAY

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MAKE SENSE TO GIVE YOU MY PRELIMINARY THOUGHTS HERE

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PARTICULARLY GIVEN THE KIND OF UNIQUE TIMING HERE ON THE

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CASE.

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IN ADDITION TO LOOKING AT YOUR PAPERS, I'VE LOOKED

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AT THE DOCKET.

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COMPLAINT, THAT THERE WAS SOME MOTION PRACTICE IN FRONT OF

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CHIEF JUDGE KING.

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I'M AWARE THAT WE'RE ON OUR FOURTH AMENDED

I SPOKE BRIEFLY WITH CHIEF JUDGE KING THE OTHER

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DAY.

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HAPPY BIRTHDAY TO HIM.

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WITH ANYBODY.

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I GOT TO CONFESS.

I STARTED THE CONVERSATION BY SAYING
I HOPE THAT DOESN'T GET ME IN TROUBLE

BUT HE TOLD ME ABOUT -- SORT OF THE TIMING OF THE

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CASE AND THE FACT THAT YOU FOLKS HAD ASKED FOR KIND OF AN

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EXPEDITED DISCOVERY DATE FOR WHAT YOU'RE CALLING THE FIRST

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PHASE OF THIS CASE.

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WITH RESPECT TO THE TIMING AND PROGRESS OF THE DISCOVERY

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HERE.

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AND THAT GIVES ME A COUPLE OF THOUGHTS

BUT I KNOW YOU FEEL LIKE YOU'RE UNDER THE GUN IN

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TERMS OF THE TIMING THAT YOU'VE IMPOSED ON YOURSELVES.

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SO, I WANTED TO -- WANTED TO GIVE YOU MY THOUGHTS ON THAT AS

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WELL AND TO SEE IF THERE IS A WAY FORWARD.

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AND,

THE END RESULT OF OUR DISCUSSION HERE TODAY -- AND

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IT MAY JUST BE A ONE-SIDED DISCUSSION FOR ME HERE.

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SAID, YOU'RE NOT REQUIRED TO ARGUE HERE TODAY.

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BE MORE INTERESTED IN THINKING ABOUT WHAT I HAVE TO SAY AND

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FIGURING OUT WHAT YOU WANT TO DO.

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LIKE I

AND YOU MAY

BUT THE END RESULT TODAY IS YOU MAY WANT TO TAKE
ANOTHER RUN AT SITTING DOWN IN LIGHT OF MY THOUGHTS AND

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SEEING IF THERE'S SOMETHING TO BE WORKED OUT OR,

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ALTERNATIVELY, WHETHER YOU CAN FOCUS ON A MORE DISCRETE ISSUE

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OR SET OF ISSUES HERE AND PROVIDE ME WITH SUPPLEMENTAL BRIEFS

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THAT MAY BE A LITTLE BIT MORE FOCUSED ON THE ISSUES THAT I

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THINK ARE AT PLAY HERE.

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MY UNDERSTANDING IS THAT THIS IS A CASE INVOLVING

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THE RIGHTS TO HAPPY BIRTHDAY TO YOU, A CASE THAT WAS -- OR A

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SONG THAT WAS ORIGINALLY COPYRIGHTED IN THE 19TH CENTURY.

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THERE ARE ISSUES REGARDING THE VALIDITY OF THE COPYRIGHT AND

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ITS EXTENSION, ALLEGATIONS OF INFRINGEMENT AND SO FORTH.

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AND, THEN, THE DISCOVERY REQUESTS THAT PLAINTIFF

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SERVED FOR WHATEVER THOSE RECORDS WERE MET WITH INVOCATION OF

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PRIVILEGE AND EVENTUALLY THE PRODUCTION OF A PRIVILEGE LOG

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AND THEN A SECOND PRIVILEGE LOG WHICH MR. KAPLAN FORWARDED TO

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THE COURT SEPARATELY THE OTHER DAY WHEN I NOTICED THAT IT HAD

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BEEN INADVERTENTLY --

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DON'T WORRY ABOUT IT.

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-- BUT IT HAD NOT BEEN ATTACHED TO THE MOVING

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PAPERS.

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I UNDERSTAND AND I TAKE SERIOUSLY PLAINTIFF'S CLAIM

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THAT THE PRIVILEGE LOG WAS PRODUCED AFTER EITHER THE DEADLINE

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SET FORTH IN RULE 30 -- OH, I ALWAYS GET CONFUSED -- 33 OR

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34, WHICHEVER ONE IT IS AND, PERHAPS, AFTER A TIME WHEN THERE

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WAS AN AGREED-UPON EXTENSION.

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AND THE BURLINGTON NORTHERN ARGUMENT THAT PRIVILEGE

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IS WAIVED IF IT'S INVOKED IMPROPERLY OR BELATEDLY IS AN

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ARGUMENT THAT I'M FAMILIAR WITH.

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TIME TO TIME.

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CIRCUIT HAS IDENTIFIED IN MAKING THAT DETERMINATION AS TO

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WHETHER PRIVILEGE HAS BEEN WAIVED AND, NOTWITHSTANDING THE

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PRODUCTION OF A LOG, DOCUMENTS MUST BE PRODUCED.

I SEE IT, YOU KNOW, FROM

AND I'M WELL AWARE OF THE FACTORS THAT THE

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I WILL -- AND, THEN, THERE WERE OTHER ARGUMENTS

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THAT WERE PRESENTED IN THE PAPERS REGARDING THE MANNER IN

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WHICH THE LOG WAS PREPARED AND WHETHER THERE WERE AMBIGUOUS

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PHRASES USED AND WHETHER THE PRIVILEGE WAS APPROPRIATELY

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BEING RAISED AND WHETHER SUFFICIENT INFORMATION WAS BEING

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PROVIDED TO THE PLAINTIFF SO THAT THE PLAINTIFF AND/OR THE

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COURT COULD TEST THE VALIDITY OF THE INVOCATION OF THE

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PRIVILEGE.

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AND, THEN, YOU GET INTO ISSUES THAT ARE A LITTLE

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BIT MORE UNIQUE, WHICH IS THE ISSUE OF WAIVER AND THIRD

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PARTIES AND JOINT -- JOINT OR COMMON INTEREST IN THE EXERCISE

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OF THE RIGHTS HERE AND WHETHER PRIVILEGE APPLIES TO SOME OF

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THE MATERIALS THAT ARE AT ISSUE HERE.

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LET ME JUST TAKE A PAUSE.

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MS. MANIFOLD, RECOGNIZING I MAY HAVE GLIDED THROUGH

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SOME OTHER THINGS HERE, AM I GENERALLY IN THE BALLPARK HERE?

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MS. MANIFOLD:

YOUR HONOR, I BELIEVE YOU'RE SPOT

ON.
THE COURT:

OKAY.

THAT'S NICE.

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MS. LE MOINE.

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MS. LE MOINE:

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THAT SOUNDS LIKE THE THREE CLAIMS

THAT ARE MADE, YES.

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THE COURT:

OKAY.

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ALL RIGHT.

WELL, I APPRECIATE THAT.

LIKE I SAID,

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I HAVEN'T WORKED IT UP IN FULL, BUT I SPENT, YOU KNOW, A GOOD

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PART OF TIME THIS WEEK ON IT BECAUSE IT'S AN INTERESTING

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ISSUE AND IT'S AN IMPORTANT CASE.

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GET -- I GET SOME OF THESE ISSUES RIGHT.

AND I WANT TO MAKE SURE I

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I MEAN, I'LL TELL YOU -- I'LL TELL YOU RIGHT NOW.

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I DON'T SEE THE BURLINGTON NORTHERN ISSUE AS BEING A WINNER

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HERE.

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FIRMS AND BIG COMPANIES LIKE TO BIG FIRM AND BIG COMPANY

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ANOTHER LITIGANT.

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THE CONCEPT OF BEING SLOW-PLAYED IN DISCOVERY AND BEING

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DELAYED AND -- YOU KNOW, PARTICULARLY IN A CASE WHERE THE

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PARTIES HAVE AGREED -- AGREED JOINTLY -- TO SHORT DEADLINES,

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I AM VERY AWARE OF THE POTENTIAL OF PREJUDICE HERE WITH

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RESPECT TO THE LATE ROLL-OUT OF THINGS.

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I'M WELL AWARE THAT THERE ARE CIRCUMSTANCES WHERE BIG

AND I UNDERSTAND VERY, VERY WELL

I REALLY DON'T WANT TO HAVE TO SPEND A LOT OF TIME

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ON WHAT YOUR DISCUSSIONS WERE, OR WHAT YOUR CONFIRMATION

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LETTERS WERE, OR WHAT YOUR COUNTER-CONFIRMATIONS EMAILS WERE.

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ACTUALLY, I'M BLESSED THAT YOU DIDN'T SUBMIT TO ME A TON OF

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THOSE MATERIALS.

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WHAT THEIR LETTERS SAY, AND I HAVE ENDLESS DECLARATIONS ABOUT

USUALLY LAWYERS WANT ME TO KNOW EXACTLY

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THAT.

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IF YOU REALLY WANT ME TO FIGURE OUT WHETHER THERE

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WAS AN EXTENSION OFFERED AND TAKEN AND WHETHER IT WAS RENEWED

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AND ALL THAT, I'M HAPPY TO BRING YOU UP TO FEDERAL COURT AND

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PUT YOU ON THE STAND, SWEAR YOU IN, AND UNDER PENALTY OF

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PERJURY I'LL ASK YOU MYSELF.

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WAY.

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MAYBE WE DON'T NEED TO GO THAT

I ALSO THINK THAT GIVEN THE NATURE OF THE CASE HERE
AND THE HISTORIC NATURE OF THESE DOCUMENTS, SOME OF WHICH GO

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BACK A FAIRLY LONG TIME, THEY MAY HAVE BEEN PRODUCED IN OTHER

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LITIGATION.

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BURDEN TO ASSEMBLE THEM.

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THAT WAS SERVED IN FEBRUARY AFTER FOUR ITERATIONS OF A

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COMPLAINT AND, YOU KNOW, FOR RESPONSES THAT WERE ORIGINALLY

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DUE IN MARCH AND PERHAPS EXTENDED INTO APRIL, THE PRODUCTION

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OF A LOG IN MAY DOESN'T STRIKE ME AS THE MOST NEFARIOUS OF

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CONDUCT HERE.

THEY MAY -- IT MAY OR MAY NOT HAVE BEEN A BIG
BUT I GOT TO SAY THAT FOR DISCOVERY

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I RECOGNIZE, AND I WANT TO GIVE SOME REAL THOUGHT

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TO THE FACT THAT THAT LOG WAS SUPPLEMENTED IN JUNE, KIND OF

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AS THE PARTIES WERE GEARING UP FOR THIS.

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UNDERSTAND THE CONCEPT THAT YOU PUSH THE MOTION TO TRY AND

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GET A RESULT.

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AND, YOU KNOW, I

I DON'T THINK WE GET INTO THE RULE OF -- RULE 37

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WHERE SOMEONE IS A PREVAILING PARTY IF DISCOVERY IS PRODUCED

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AFTER THE MOTION HAS BEEN FILED, YOU KNOW, THEREBY MOOTING

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THE MOTION.

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AND THE RULES DON'T HAVE ANY TIME FOR.

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DON'T HAVE ANY REASON TO BELIEVE THAT THAT OCCURRED HERE.

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THAT'S A TACTIC THAT I DON'T HAVE ANY TIME FOR
BUT I DON'T -- I

YEAH, THERE WAS A SUPPLEMENTAL LOG THAT CAME OUT.

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BUT THE SUPPLEMENTAL LOG WENT A LONG WAY TO ALLEVIATING SOME

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OF THE ISSUES THAT WERE RAISED IN SORT OF POINT 2 OF THE

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MOTION, WHICH IS, GEE, I REALLY DON'T KNOW WHAT CONCERNING

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MEANS OR, YOU KNOW, HOW THESE DOCUMENTS ARE BEING DESCRIBED.

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I SAT THERE AND KIND OF DID A RUDIMENTARY SIDE BY

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SIDE OF THE MAY LOG AND THE JUNE LOG.

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THAT THE JUNE LOG WAS BETTER.

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DETAILED.

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THAT MS. MANIFOLD AND HER TEAM HAD RAISED.

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AND MY FIRST TAKE WAS

THE JUNE LOG WAS MORE

THE JUNE LOG WAS MORE RESPONSIVE TO THE CONCERNS

AND, YOU KNOW, NOT GREAT THAT IT CAME IN THIS

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SEQUENCE OF EVENTS.

BUT, AGAIN, IT WAS REASONABLY PROMPT.

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AND GIVEN SOME OF THE CIRCUMSTANCES AND THE UNIQUE NATURE OF

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SOME OF THESE ISSUES, AND FOREIGN COMPANIES AND FIGURING OUT

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WHO IS WHO, AGAIN, I GOT TO SAY I'M NOT THE MOST MORTALLY

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OFFENDED BY WHAT I SAW.

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PRECLUDE THE PLAINTIFFS FROM IDENTIFYING SOME MORE

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DEFICIENCIES HERE.

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ORIGINALLY, ALTHOUGH PERHAPS LATE, SEEMED TO GET BETTER,

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ALBEIT EVEN LATER.

ALTHOUGH I'M NOT INTENDING TO

BUT WHAT I THOUGHT HAD BEEN PRETTY GOOD

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AND WE CAN TALK ABOUT DATES BECAUSE I DON'T WANT TO

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HAVE -- I DON'T WANT TO BASE A RULING OR CAUSE THE PARTIES TO

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INCUR COSTS OR TAKE POSITIONS BASED ON TIMING.

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RECOMMEND A CHANGE IN THE DATES HERE TO CHIEF JUDGE KING TO

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GIVE SOMEONE RELIEF HERE, THAT MAY BE THE RELIEF YOU REALLY

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WANT ON THESE ISSUES.

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IF I

THEN, WE GET INTO THIS ISSUE OF THE THIRD PARTY AND

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THE JOINT INTEREST OR THE COMMON INTERESTS.

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TO GET TURNED AROUND ON THIS, IS THIS THE WAIVER, THIS IS THE

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EXCEPTION TO THE WAIVER.

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HELPED OUT ON THIS.

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AND I DON'T MEAN

YOU CAN HELP ME OUT IF I NEED TO BE

BUT THE ISSUE IS THAT THERE IS A CLAIM OF PRIVILEGE

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EXTENDING -- WE'RE NOT TALKING ABOUT THE ROLE OF NON-LAWYERS

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OR INDEPENDENT CONTRACTORS OR SORT OF LOCAL AGENTS WHO MAY

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FALL WITHIN THE SCOPE OF THE PRIVILEGE.

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THE NIDEC ISSUE THAT WAS RAISED HERE, WHICH HAS TO DO WITH

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GOING SORT OF WELL BEYOND WHAT COULD BE THE EMPLOYER-EMPLOYEE

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RELATIONSHIP OR THE EMPLOYER-INDEPENDENT CONTRACTOR

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RELATIONSHIP.

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BUT THIS IS SORT OF

AND THAT GETS INTO THIS -- OH, HERE IT IS -- "THE

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COMMON INTEREST EXCEPTION TO THE RULE WAIVING PRIVILEGE."

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GOOD.

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I GOT IT NOW.
AND I READ -- I READ THE PARTIES' CASES HERE.

I

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MEAN, THE MGA CASE IS A CASE FROM THIS DISTRICT.

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JUDGE SEGAL, AND I READ THAT QUITE CLOSELY.

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CHEN UP IN THE NORTHERN DISTRICT.

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TO BE OF INTEREST, NOT JUST THE FEDERAL CIRCUIT'S DECISION

IT'S CHIEF

NIDEC FROM JUDGE

THE PATENT CASES I FOUND

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THAT WAS CITED IN YOUR PAPERS BUT, ALSO, AS TO THE MORE

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RECENT ONE IN THE GENENTECH CASE BY JUDGE GREWAL INVOLVING

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PATENT LITIGATION UP IN THE NORTHERN DISTRICT.

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I MEAN, THERE'S DEFINITELY -- DEFINITELY AN

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INTERESTING ISSUE HERE, WHICH RAISES SOME LEGAL QUESTIONS.

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IT ALSO RAISES SOME INTERESTING FACTUAL QUESTIONS.

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MAY BE WHERE I NEED TO GET SOME MORE DEVELOPMENT.

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AND THIS

MY UNDERSTANDING -- AND, AGAIN, THERE'S GOING TO BE

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SOME DETAILS HERE THAT I JUST CAN'T GET RIGHT BECAUSE I'M

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NOWHERE NEAR AS FAMILIAR WITH ALL THIS STUFF AS YOU FOLKS

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ARE.

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SHORTHAND.

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WITH THE LICENSING ENTITIES IN THE U.K., IN FRANCE AND,

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PERHAPS, ELSEWHERE, AND IN COMMUNICATIONS THAT THOSE ENTITIES

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APPEARED TO HAVE HAD WITH PERHAPS THEIR LAWYERS, THERE IS AN

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ASSERTION THAT THERE IS THIS COMMONALITY WHICH BRINGS THOSE

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COMMUNICATIONS WITHIN THE PRIVILEGE.

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BUT WHEN WARNER -- I'M GOING TO CALL IT WARNER FOR
WHEN WARNER OR WARNER'S LEGAL STAFF WAS DEALING

I DON'T KNOW.

AND I -- AND I DON'T KNOW BECAUSE I

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DON'T KNOW THAT I KNOW ENOUGH FACTUALLY ABOUT WHO THESE

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ENTITIES ARE, THE NATURE OF THEIR RELATIONSHIP WITH WARNER.

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YOU KNOW, THE ISSUE IN NIDEC HAD TO DO WITH WE'VE GOT PATENT

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LITIGATION OR WE'VE GOT LITIGATION I GUESS IT IS.

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WANT TO DISCLOSE SOME OF THAT TO A POTENTIAL PURCHASER FOR

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ISSUES THAT ARE UNRELATED TO THE ACTUAL PROSECUTION OF THOSE

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CASES OR PROTECTION OF RIGHTS.

AND WE

BUT THAT WAS VALUATION OF A

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BUSINESS IN THE CONTEXT OF A TAKE-OVER.

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AND THE NIDEC COURT -- AND I UNDERSTAND THAT THE

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NIDEC HOLDING IS THAT JUST BECAUSE YOU'RE DISCLOSING THESE

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CONFIDENTIAL ISSUES IN A CONFIDENTIAL MANNER, THAT DOESN'T --

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THAT DOESN'T SEEM TO FALL WITHIN THE PRIVILEGE BECAUSE THAT'S

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COMMONALITY OF A FINANCIAL INTEREST OR A BUSINESS INTEREST AS

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OPPOSED TO A LEGAL INTEREST.

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AND THE PATENTEE LICENSEE CASES SEEM TO BE A BIT
DIFFERENT.

AND THE NATURE OF WHAT'S GOING ON HERE GIVEN THAT

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THESE ARE LICENSING ENTITIES AND AGENCIES THAT ARE OPERATING

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THE COPYRIGHTS AND THEY HAVE REQUIREMENTS TO MAINTAIN THE

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INTEGRITY OF THOSE RIGHTS GIVES ME SOME REASON TO PAUSE

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WHETHER IT DOES OR DOES NOT FALL INTO THE COMMON INTEREST

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RULE HERE.

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AND, SO, MAYBE THAT'S A GOOD PLACE FOR ME TO PAUSE

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AND SEE WHETHER -- WHETHER ANYBODY WANTS TO BE HEARD HERE.

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BECAUSE THIS IS AN AREA WHERE FRANKLY WE CAN GO A NUMBER OF

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DIFFERENT DIRECTIONS.

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MAYBE TAKE ANOTHER RUN AT SITTING DOWN AND FIGURING OUT

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WHETHER YOU NEED SOME MORE INFORMATION ON THIS ISSUE TO

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DETERMINE WHETHER THIS IS A LEGITIMATE INVOCATION OF

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PRIVILEGE.

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YOU FOLKS --

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MS. MANIFOLD:

YOU FOLKS COULD, AND PERHAPS SHOULD,

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YOUR HONOR, IF I COULD BE HEARD

FIRST SINCE IT IS MY MOTION.

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THE COURT:

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MS. MANIFOLD:

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GO AHEAD.
I JUST -- I WANTED TO MAKE JUST A

COUPLE OF OBSERVATIONS --

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THE COURT:

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MS. MANIFOLD: -- BASED ON THE COURT'S COMMENTS TO

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GO AHEAD.

US.

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AND I APPRECIATE THE COURT'S VIEW WITH REGARD TO

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THE NATURE OF THE DELAY IN THE BURLINGTON NORTHERN WAIVER.

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AND I THINK THAT THE PARTIES HAVE THROUGHOUT THIS LITIGATION

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-- AND I THINK THE COURT HAS MADE THAT OBSERVATION AND HAS

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DEALT WITH EACH OTHER WITH COURTESY AND COOPERATION.

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VERY PLEASED THAT -- AND I'M SURE MY -- DEFENDANT'S COUNSEL

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WILL JOIN ME IN THIS IN SAYING THAT WE'RE PLEASED THAT THE

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COURT HAS NOTED THAT IN OUR PAPERS.

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THE COURT:

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MS. MANIFOLD:

AND I'M

YES.
AND I CERTAINLY -- WE DON'T DISPUTE

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THAT AN EXTENSION WAS GIVEN TO -- FOR THE PRODUCTION OF

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DOCUMENTS OR FOR THE PRODUCTION OF OBJECTIONS.

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SO, IF THE COURT IS BASED ON THE COMMENTS SOMEWHAT

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SINGULARLY UNIMPRESSED BY THE DELAY THAT WE POINTED OUT IN

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THE PRODUCTION LOG, THEN, I CERTAINLY WILL TAKE THAT INTO

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CONSIDERATION WITH REGARD TO ANY SUPPLEMENTAL BRIEFING AND

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WHERE THE PLAINTIFFS PLAN TO FOCUS THE FURTHER DEVELOPMENT OF

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THEIR ISSUES.

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AND I KNOW THAT THE COURT RAISED THE ISSUE OF THE

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POTENTIAL FOR RULE 37 FINES.

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ANY INTEREST IN THAT.

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ON THE LEGAL ISSUES AND GET A RESOLUTION IN THE MOST

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PRACTICAL AND EFFICIENT WAY.

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TO DO IT, OR WE CAN FURTHER MEET AND CONFER, I THINK WE'RE

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CAPABLE OF DOING EITHER.

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THE COURT:

I THINK WE WOULD JUST PREFER TO FOCUS

AND IF THAT MEANS THE COURT HAS

AHH, BUT YOU SEE -- YOU HAVE THE

PROBLEM THERE THOUGH.

RULE 37 IS MANDATORY.

MS. MANIFOLD:
THE COURT:

I DON'T THINK EITHER PARTY HAS

OKAY.

RULE -- RULE 37(A)(5) SAYS THAT IF A

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MOTION IS GRANTED FOR -- TO COMPEL PRODUCTION, THE COURT MUST

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AFTER GIVING AN OPPORTUNITY TO BE HEARD REQUIRE THE PARTY

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WHOSE CONDUCT NECESSITATED THE MOTION OR THEIR ATTORNEY TO

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PAY EXPENSES.

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THERE ARE EXCEPTIONS TO IT, BUT IF THE MOTION IS

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DENIED, THEN, I MUST -- AGAIN, THIS IS 37(A)(5)(B), I MUST

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TAKE UP THE ISSUE OF ATTORNEY'S FEES.

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SO, YOU KNOW, AGAIN, ONCE YOU FOLKS LAUNCHED THE

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MOTION, THINGS COME INTO PLAY, NOT THE LEAST OF WHICH MY

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OBLIGATION TO AT LEAST TAKE THIS UP OR REQUIRE YOU TO ADDRESS

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IT, WHICH MAY ALSO BE SOMETHING YOU WANT TO TAKE INTO YOUR

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CALCULUS AS YOU MOVE FORWARD.

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MS. MANIFOLD:

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AND I -- AND GETTING TO THE NEXT POINT WAS THAT I

25

I UNDERSTAND, YOUR HONOR.

THINK ONE OF THE KEY FOCUSED -- AND WHAT PLAINTIFFS HAD

17
1

PLANNED TO FOCUS MORE CLEARLY ON IN THEIR SUPPLEMENTAL

2

MEMORANDUM WAS THE COMMON INTEREST, WHICH I THINK IS WHAT THE

3

COURT HAS BEEN MOST FOCUSED ON.

4

WHERE THERE ARE SEVERAL DOCUMENTS THAT BASED ON THE ARGUMENTS

5

IN OUR BRIEFING DON'T COME WITHIN THE COMMON INTEREST.

6

THINK THAT THAT'S THE CLEAREST AND THE MOST FOCUSED ARGUMENT

7

THAT THE PLAINTIFFS HAD PLANNED TO MAKE IN THE SUPPLEMENTAL

8

BRIEFING.

9

THE COURT:

OKAY.

AND I THINK THAT THAT'S

AND I

WELL, I MEAN, LOOK, ONE THING WE

10

CAN DO IS SUPPLEMENTAL BRIEFS.

11

THAT YOU MAY -- YOU MAY WANT TO EMPHASIZE THAT BECAUSE I

12

THOUGHT YOUR PAPERS WERE THINNEST IN THAT AREA, EVEN THOUGH

13

YOU WERE AWARE THAT THE ISSUE WAS THERE.

14

LIKE YOU SPENT MOST OF YOUR TIME ON THE OTHER POINTS AND KIND

15

OF THREW THIS IN AT THE END.

16

YOU KNOW, I DO HAVE TO SAY

I MEAN, IT SEEMS

I WILL SAY THAT I'M NOT -- I'M NOT AVERSE TO IN

17

CAMERA INSPECTION OF SOMETHING THAT'S LIMITED.

18

KNOW, I HAVE NO WAY OF KNOWING THAT A 137 DOCUMENTS WITH 300

19

PAGES OUT OF 2,000 -- BLAH, BLAH, BLAH, BLAH -- I HAVE NO WAY

20

OF KNOWING WHETHER THAT IS A REASON -- IT'S GOING TO BE

21

REALLY BURDENSOME ON THE COURT TO DO THIS.

22

AND, YOU

I DON'T KNOW THAT I'LL HAVE ENOUGH INFORMATION TO

23

DO AN INTELLIGENT REVIEW OF PRIVILEGE.

SO, I THINK I NEED TO

24

SEE -- I NEED TO SEE SOME MORE GUIDANCE FROM YOU FOLKS AHEAD

25

OF TIME ON THE ISSUE, RECOGNIZING THAT THE PLAINTIFFS ARE

18
1

KIND OF BLIND BECAUSE THE WHOLE POINT IS THAT THEY'RE NOT

2

GOING TO SEE THESE RECORDS.

3

BUT IF I'M DOING AN IN CAMERA REVIEW, AND PUTTING

4

MY OTHER CASES ON HOLD, YOU KNOW, RULE 37 MOST DEFINITELY

5

COMES INTO PLAY THEN.

6

IN A DISCOVERY DISPUTE THAT IS FAIRLY EXTRAORDINARY.

7

BECAUSE THAT'S ME INTERVENING IN A WAY

NOW, IF WE'RE TALKING ABOUT A DOZEN PIECES OF

8

PAPER, IT MAY NOT BE AS MUCH AS OTHERWISE THREATENED, BUT,

9

YOU KNOW, IT'S OF SIGNIFICANCE, AND IT SHOULD NOT BE IN THE

10

ORDINARY COURSE.

SO, I WANTED TO LET YOU KNOW ABOUT THAT.

11

I TAKE SERIOUSLY THE DEFENSE'S POSITION THAT, YOU

12

KNOW, THEY DON'T WANT TO HAVE TO SUBMIT EVERYTHING AND HAVE

13

ME DO THIS WORK.

14

THAT SOMEBODY PREPARES A PRIVILEGE LOG AND THEN THE OTHER

15

SIDE SAYS I DON'T BELIEVE IT.

16

THE OPPOSITE.

17

VALID UNLESS WE'VE GOT A PROBLEM OR SOMETHING UNIQUE AND

18

DEFINABLE.

19

THE WHOLE POINT OF THE PRIVILEGE LOG IS NOT

JUDGE, YOU LOOK AT IT.

IT'S

IT'S -- THE PRIVILEGE LOG IS PRESUMPTIVELY

THIS MAY -- MAY BE UNIQUE AND DEFINABLE.

BUT IN

20

ORDER TO DEMONSTRATE THE UNIQUENESS AND TO GIVE ME THAT

21

DEFINITION AS TO WHAT I SHOULD BE LOOKING FOR, I THINK I MAY

22

NEED MORE ON THE LAW BUT, PERHAPS MORE IMPORTANTLY, SORT OF

23

THE NATURE OF WHAT I MIGHT BE LOOKING AT AND THE NATURE OF

24

THESE PARTIES.

25

LICENSING AGENTS.

I HAVE SOME RUDIMENTARY UNDERSTANDING OF
YOU KNOW, THESE WERE EQUATED TO ASCAP AND

19
1

BMI EXCEPT MAYBE OVERSEAS.

2

UNDERSTAND.

3

IN ORDER TO MAKE THE INTELLIGENT DECISION THAT I'M EXPECTED

4

TO MAKE.

5
6

BUT, YOU KNOW, I'M NOT SURE I

I'M NOT SURE THAT I KNOW WHAT I'D BE LOOKING FOR

MS. MANIFOLD:

YOUR HONOR, BETSY MANIFOLD FOR THE

PLAINTIFFS.

7

AND I -- IF I MAY -- AND I APOLOGIZE IF THIS WOULD

8

BE IMPROPER IN THIS CONTEXT, BUT I WOULD LIKE TO THROW OUT

9

THE QUESTION TO DEFENDANT'S COUNSEL TO SEE IF --

10

THE COURT:

GO AHEAD.

11

MS. MANIFOLD: -- THERE'S A WILLINGNESS BASED ON THE

12

COURT'S WILLINGNESS FOR US TO PERHAPS CONTINUE THE

13

MEET-AND-CONFER PROCESS FOR A DISCRETE PERIOD OF TIME AND

14

THEN PERHAPS RESUBMIT A MORE -- BASED ON -- BECAUSE

15

UNFORTUNATELY WE GOT THE AMENDED PRIVILEGE LOG AT THE SAME

16

TIME WE -- OUR PAPERS WERE ALREADY FILED.

17

DIFFICULT.

18

OF THE CHANGES IN THE PRIVILEGE LOG.

19

COULD BE MORE FACTUAL DETAIL PROVIDED BY THE DEFENDANTS THAT

20

COULD ANSWER SOME OF THE QUESTIONS BOTH THAT ARE RAISED BY

21

THE PRIVILEGE LOG AND THAT THE COURT RAISED.

WE BASICALLY COULDN'T TAKE INTO CONSIDERATION ANY

22

THE COURT:

23

MS. MANIFOLD:

24
25

SO, IT WAS VERY

AND I THINK THAT THERE

WELL, THE ANSWER -AND I DON'T KNOW IF THAT'S A PROCESS

THAT WOULD BE APPROPRIATE TO RAISE AT THIS POINT OR -THE COURT:

NO.

20
1
2

MS. MANIFOLD: -- IF WE SHOULD JUST PROCEED TO
SUPPLEMENTAL BRIEFING.

3
4

THE COURT:

NO.

THE -- NO.

THE ANSWER IS IT'S

ABSOLUTELY APPROPRIATE.

5

LOOK, I'M GOING TO BE -- BECAUSE YOU -- BECAUSE --

6

LIKE I SAID, YOU FOLKS HAVE DONE -- HAVE DONE FINE HERE.

7

THIS IS NOT THE KIND OF CASE WHERE I FEEL LIKE I HAVE TO

8

BRING THE HAMMER ON LAWYERS.

9

FREELY.

TO THE CONTRARY, I WILL SPEAK

ANYTHING THAT YOU CAN AGREE UPON WILL BE BETTER FROM

10

YOUR PERSPECTIVES THAN ANYTHING THAT I CAN IMPOSE UPON YOU.

11

OKAY.

12

ISSUES HERE.

13

ARE MORE FAMILIAR WITH, PERHAPS, WHAT YOU CAN GIVE UP IN --

14

YOU KNOW, ZEALOUSLY REPRESENTING YOUR CLIENTS BUT ALSO

15

PRACTICALLY REPRESENTING YOUR CLIENTS AND PUTTING IT IN THE

16

HANDS OF SOMEONE ELSE -- BE IT A FEDERAL JUDGE OR DISCOVERY

17

MASTER OR SOME GUY OFF THE STREET -- LIKELY IS NOT IN YOUR

18

CLIENT'S INTERESTS.

19
20
21

I SAY THAT BECAUSE YOU ARE MORE FAMILIAR WITH THE
YOU ARE MORE FAMILIAR WITH WHAT YOU NEED.

YOU

SO, IN THE ORDINARY COURSE, ANYTHING THAT YOU CAN
AGREE UPON IS GOOD FOR YOU AND IS IN YOUR INTERESTS.
AND I'M HAPPY TO PUSH THE PAUSE BUTTON HERE.

AND

22

THAT'S WHY I WANTED TO LET YOU KNOW THAT IF YOU FEEL LIKE

23

BECAUSE OF THE CHANGE IN THE CIRCUMSTANCE AND BECAUSE YOU NOW

24

HAVE, YOU KNOW, SOME OF THE INFORMATION YOU WERE SEEKING,

25

MS. MANIFOLD, FROM THE DEFENSE -- AND THEY'VE COMPLIED AND,

21
1

YOU KNOW, OR GETTING TOWARDS COMPLIANCE OR WHATEVER -- WE CAN

2

PUSH PAUSE.

3

THE DISCOVERY CUT-OFF TO SORT OF MAINTAIN THE STATUS QUO AND

4

AVOID PREJUDICE, LIKE I SAID, I'LL PICK UP THE PHONE AND CALL

5

JUDGE KING -- CHIEF JUDGE KING AND SEE WHAT I CAN DO.

6

IF THE RELIEF YOU NEED IS A BRIEF CONTINUANCE OF

I'M HAPPY TO GET YOU FOLKS BACK ON THE PHONE TO

7

SORT OF SEE WHERE THINGS ARE AND TO TAKE YOUR TEMPERATURE.

8

UNFORTUNATELY, I DO HAVE SOME PERSONAL TRAVEL COMING UP THE

9

NEXT COUPLE OF WEEKS, BUT I CAN MAKE MYSELF AVAILABLE, AND I

10

WILL MAKE MYSELF AVAILABLE AS A SERVICE TO YOU FOLKS IF THAT

11

MAKES SENSE.

12

NOW AND LET ME KNOW THAT YOU'VE WORKED IT OUT OR THAT YOU'VE

13

REDUCED THE SCOPE OF THINGS --

14
15

AND, MS. LE MOINE, I'M HAPPY TO HEAR FROM YOU AS
WELL ON THIS --

16
17
18

IF YOU WANTED TO GET ON THE PHONE A WEEK FROM

-- BUT IF THAT'S THE WAY FORWARD, THAT'S FINE WITH
ME.

AND, THEN, THIS HAS BEEN A SUCCESS.
MS. LE MOINE:

YOUR HONOR, I WILL CHIME IN HERE.

19

I'VE LEARNED A LESSON, WHICH IS WHEN YOU -- WHEN YOU DON'T

20

DISAGREE WITH ANYTHING, YOU DON'T SAY ANYTHING.

21

THE COURT:

22

MS. LE MOINE:

BUT --

RIGHT ON.
SO -- AS I MAY BE MAKING A MISTAKE.

23

BUT I THINK YOU'RE ABSOLUTELY RIGHT, AND I APPRECIATE YOUR

24

HAVING TO LOOK AT IT QUICKLY SO THAT WE COULD SORT OF FOCUS

25

ON, YOU KNOW, WHERE THE -- THE INTERESTING ISSUE HERE.

AND I

22
1

AGREE WITH YOU IT'S AN INTERESTING ONE, AN INTERESTING LEGAL

2

ISSUE.

3

I AM CONFIDENT THAT THE DOCUMENTS -- AND IT'S A

4

SUBSET OF THE WHOLE -- OF THE LOG -- THAT ARE EXCHANGED WITH

5

LICENSING AGENTS, ARE PRIVILEGED, AND THAT THEY ARE PROTECTED

6

AGAINST WAIVER BY THE COMMON INTEREST DOCTRINE.

7

I'M HAPPY TO SIT DOWN WITH PLAINTIFFS AGAIN AND

8

HAVE A CHAT ABOUT HOW TO KEEP THIS -- MAYBE TO FOCUS THIS AND

9

SEE WHERE THAT DISCUSSION GOES AND ALLEVIATE ANY BURDEN ON

10
11

THE COURT.
THE COURT:

AND ONE THING -- AND I APPRECIATE THAT,

12

AND I APPRECIATE THE SPIRIT ON BOTH SIDES.

I MEAN, ONE THING

13

YOU MAY WANT TO DO IS MAYBE A LITTLE BIT OF PEEK-A-BOO.

14

MAYBE DISCLOSE A LITTLE BIT MORE ABOUT WHAT YOU HAVE TO LET

15

HER MAKE AN INTELLIGENT DECISION.

16

MUCH OF A LAY-DOWN FROM YOUR SIDE -- YOU KNOW, I'M NOT

17

TALKING ABOUT YOU WAIVING THE PRIVILEGE OR SHOWING HER THE

18

DOCUMENTS, BUT MAYBE YOU CAN BE A LITTLE BIT MORE EXPRESS IN

19

THIS AREA TO GIVE HER -- TO GIVE HER COMFORT THAT SHE'S NOT

20

JUST GIVING AWAY THE FARM.

AND IF IT'S REALLY THAT

21

I MEAN, PART OF WHAT I WAS THINKING ABOUT WAS, YOU

22

KNOW -- I'M NOT LOOKING TO PLAY GAMES OR ANYTHING, BUT MAYBE

23

WE HAVE TO DO A SAMPLE.

24

MUTUALLY AGREED-UPON DOCUMENTS, YOU KNOW, WHERE BOTH SIDES

25

FEEL VERY CONFIDENT THAT THESE ARE -- ARE OR ARE NOT

AND MAYBE THE SAMPLING CAMERA IS

23
1

PRIVILEGED.

2

ARE PRIVILEGED AND PROPERLY PRIVILEGED, THEN, PLAINTIFF IS

3

GOING TO PAY SOME FEES.

4

PRIVILEGED, THEN, THE DEFENSE IS GOING TO PAY FEES.

5

YOU'LL PUT YOUR MONEY WHERE YOUR MOUTH IS.

6

SOME OTHER SANCTIONS OR CONSEQUENCES COMING IN THAT I HAVEN'T

7

PUT INTO FIRM THOUGHT.

8
9

AND I LOOK AT FIVE OF THEM.

AND IF A MAJORITY

AND IF THE MAJORITY ARE NOT PROPERLY
AND

OR MAYBE THERE'S

BUT I WANT TO GIVE YOU FOLKS AN INCENTIVE TO
RESOLVE THIS.

AND THE INCENTIVE IS NOT JUST ME RULING ON IT

10

BUT DOING IT IN A WAY THAT PROTECTS OUR RESOURCES HERE AND

11

KEEPS YOUR CASE MOVING.

12

YOU HAVE TO HAVE ME LOOK AT IT.

13

THAT'S NOT IN ANYBODY'S -- NOT IN ANYBODY'S INTERESTS.

14
15

BECAUSE YOU'RE GOING TO SLOW DOWN IF
OKAY.

YOU JUST ARE.

AND

SO, YEAH, IF YOU WANT TO SIT DOWN, SOMEBODY WANTS
TO BUY SOMEBODY A CUP OF COFFEE, ALTHOUGH --

16

YOU'RE DOWN IN SAN DIEGO, RIGHT, MS. MANIFOLD?

17

MS. MANIFOLD:

18

THE COURT:

19

I AM, YOUR HONOR.

ALL RIGHT.

SOMEBODY DELIVERS HER A CUP

OF COFFEE.

20

(LAUGHTER.)

21

MS. MANIFOLD:

22

THE COURT:

23
24
25

RIGHT.

MAYBE YOU CAN FIGURE SOMETHING OUT OR

MAYBE FIGURE -MS. MANIFOLD:
CUP OF COFFEE --

MAYBE WE COULD BOTH BUY EACH OTHER A

24
1

MS. LE MOINE:

2

(LAUGHTER.)

3

THE COURT:

I COULD FAX YOU A CUP OF COFFEE.

YOU MEET IN IRVINE.

IT'S HALFWAY.

4

MEAN, FIGURE SOMETHING OUT.

5

MORE EMAILS GOING BACK AND FORTH, MORE KIND OF SNITOGRAM

6

LETTERS GOING BACK AND FORTH.

7

SOMEBODY ON AN IPAD AND DO A FACE TIME DISCUSSION

8

FACE-TO-FACE.

I

9

I MEAN, THE LAST THING I WANT IS

YOU KNOW, SOMEBODY PUT

AND PUT SOME CARDS ON THE TABLE.

YOU HAVE A PROTECTIVE ORDER IN THIS CASE, CORRECT?

10

MS. MANIFOLD:

YES, YOUR HONOR.

11

MS. LE MOINE:

WE DO, YOUR HONOR.

12

THE COURT:

13

YES, I DID SIGN THAT.

SO, THERE'S

DISCLOSURE ISSUES, YOU KNOW, YOU CAN WORK WITH THAT.

14

WHAT MAKES SENSE IS A WAY FORWARD HERE.

15

MS. MANIFOLD:

MY SUGGESTION -- I THINK ONE OF THE

16

KEY MOTIVATING FACTORS FOR THE FILING AND THE ISSUES WITH THE

17

FILINGS THAT WE'VE HAD UP UNTIL NOW IS THAT WE'RE VERY

18

CONCERNED ABOUT THE DISCOVERY CUT-OFF.

AND IT'S IMPORTANT TO

19

BOTH SIDES THAT WE MAINTAIN THAT PACE.

AND IF WE'RE JUST

20

DOWN TO THIS ISSUE, IF WE COULD EXTEND OUT THE DISCOVERY

21

CUT-OFF FOR JUST THIS ISSUE SO THAT THE DEFENSE AND

22

PLAINTIFF'S COUNSEL COULD SIT DOWN AND HAVE SOME OF THE

23

DISCUSSIONS THAT THE COURT'S THINKING ABOUT, ESPECIALLY WITH

24

THE VIEWS THAT YOU'VE GIVEN US, WHICH I THINK HAVE BEEN VERY

25

HELPFUL, AND SEE IF WE CAN SIT DOWN AND EITHER WORK

25
1

EVERYTHING OUT OR ELSE, YOU KNOW, NARROW IT DOWN TO 10

2

DOCUMENTS MAYBE AS THE COURT SUGGESTS OR 5 -- WHERE BOTH

3

SIDES ARE JUST VERY CONFIDENT ON BOTH SIDES, AND THE COURT IS

4

GOING TO HAVE TO RESOLVE IT OR SEE IF WE CAN NEGOTIATE

5

SOMETHING.

6

SO, I DON'T KNOW QUITE HOW THE MECHANICS OF THAT

7

WOULD WORK.

BUT AT THIS POINT WE UNFORTUNATELY CONCURRENTLY

8

HAVE THE COPY THAT'S ON FILE WITH THE COURT.

9

DEFENDANT'S REFORMATTING AND SIGNING THE FINAL VERSION

AND THE

10

UNFORTUNATELY MESSED UP SOME OF THE PLAINTIFF'S TABLES ON

11

PAGE 20, WHICH DEFENDANT'S COUNSEL VERY KINDLY POINTED OUT TO

12

ME BEFORE THIS CALL.

13

REFILE THE PAPERS.

14
15

AND WE ARE ATTEMPTING TO FIX THAT AND

BUT I'M WONDERING IF IT'S NECESSARY TO DO THAT IF
MAYBE IN --

16

THE COURT:

NO.

17

MS. MANIFOLD: -- TWO WEEKS WE SHOULD SIMPLY REFILE

18

WHATEVER JOINT STIPULATION WE CAN AGREE ON AT THAT TIME AND

19

THEN GO FORWARD THAT WAY.

20

MECHANICS --

I MEAN, I'M TRYING TO WORK OUT THE

21

MS. LE MOINE:

22

MS. MANIFOLD: -- AND I'M NOT QUITE SURE WHAT TO DO.

23

MS. LE MOINE:

24
25

RIGHT.

WELL, LET ME, IF I CAN LIKE MAYBE

JUST MAKE A SUGGESTION ON MECHANICS -THE COURT:

GO AHEAD.

26
1

MS. LE MOINE:

-- PERHAPS WE JUST HAVE A STAY OF

2

THE PERIOD, OF THE DISCOVERY PERIOD WHICH ENDS ON THE 25TH --

3

MAYBE A STAY OF EVERYTHING FOR TWO WEEKS TO TRY TO RESOLVE

4

THIS ISSUE.

5

THE COURT:

6

MS. LE MOINE:

7

AND ADDRESS THE POINTS THAT THE

COURT HAS RAISED AND SEE IF WE CAN COME BACK TO THE COURT.

8
9

WELL --

SO, WE DON'T NECESSARILY MOVE THE DATES, BUT WE
KEEP IN MIND THAT WE'RE TAKING LIKE A -- THAT WE MIGHT MOVE

10

IT OUT TWO WEEKS BECAUSE WE'RE TAKING A TWO-WEEK STAY TO JUST

11

FOCUS AND RESOLVE THIS PRIVILEGE QUESTION.

12

THE COURT:

HOW ABOUT THIS.

HOW ABOUT WE HAVE A

13

CONFERENCE CALL A WEEK FROM TUESDAY.

WE'LL SET IT FOR THE

14

17TH.

15

GOING TO BE MORE FILING -- I MEAN, I DON'T WANT TO KILL A

16

TREE AND REFILE THE ORIGINAL MOTION.

17

IN GENERAL.

AND WE WILL SEE WHERE THINGS ARE AND WHETHER THERE'S

YOU FILED.

YOU FILED

WE'RE NOT THAT FORMAL HERE.

18

IF THERE'S GOING TO BE SOMETHING ELSE FILED, YOU

19

KNOW, IT'S GOING TO BE FOCUSED AND IT'S GOING TO BE ON THE

20

ISSUES THAT REALLY MATTER.

21

BY THE 17TH, THEN, THINGS HAVE FALLEN APART.

22

AND IF YOU HAVEN'T FIGURED IT OUT

I CAN EASILY RECOMMEND TO JUDGE KING -- AND I'LL

23

CALL HIM TODAY -- THAT THE CUT-OFF DATE AND OTHER LITIGATION

24

DATES -- I DON'T QUITE KNOW THE NUANCE OF YOUR SCHEDULING

25

ORDER, BUT JUST TO KICK EVERYTHING OUT TWO OR THREE WEEKS TO

27
1

ENABLE US TO EITHER RESOLVE THIS OR, YOU KNOW, NOBODY BE

2

PREJUDICED BY IT.

3
4
5
6
7
8
9
10
11

MS. MANIFOLD:

THAT WOULD BE ACCEPTABLE TO

MS. LE MOINE:

THAT'S FINE WITH DEFENDANTS AS WELL,

PLAINTIFF.

YOUR HONOR.
THE COURT:

IS IT ALL DATES, OR IS IT JUST THE

DISCOVERY CUT-OFF ON THE FIRST PHASE?
MS. MANIFOLD:

I THINK JUST THE DISCOVERY CUT-OFF

WOULD BE THE ONLY DATE THAT WOULD BE NECESSARILY KICKED OUT.
THE COURT:

OKAY.

I DON'T KNOW WHEN YOU WERE

12

SUPPOSED TO BE FILING YOUR FIRST MSJ.

SO, IF IT'S JUST TWO

13

WEEKS ON THE DISCOVERY CUT-OFF DATE, AND THAT WE'RE GOING TO

14

GET BACK ON THE PHONE --

15

DOES THE 17TH APPEAR TO WORK FOR YOU FOLKS?

16

MS. MANIFOLD:

YES, YOUR HONOR.

17

MS. LE MOINE:

YES --

18

MS. MANIFOLD: -- THIS IS PLAINTIFF'S COUNSEL.

19

MS. LE MOINE:

20
21

YES, THE 17TH WORKS FOR DEFENSE

COUNSEL ALSO, YOUR HONOR.
THE COURT:

WHY DON'T WE TENTATIVELY DO THIS.

I'M

22

GOING TO BE ON THE EAST COAST ON THAT DAY, BUT I WILL MAKE

23

ARRANGEMENTS TO GET ON THE PHONE WITH YOU ALL.

24
25

WE'LL SET IT FOR 9:00 A.M. PACIFIC TIME.
BE NOON ON THE EAST COAST.

THAT WILL

28
1

HOWEVER -- AND I WANT TO BE REAL CLEAR -- IF YOU

2

FOLKS FIGURE IT OUT, IF YOU FOLKS RESOLVE THIS AND YOU DON'T

3

WANT TO SPEND ANY MORE TIME WITH ME, FEEL FREE NOT TO RUIN MY

4

VACATION.

5

(LAUGHTER.)

6

THE COURT:

AND ALL YOU HAVE TO DO IS PICK UP THE

7

PHONE AND CALL MS. MC KAMIE, MY COURTROOM DEPUTY.

SHE'S AT

8

894-5496.

9

WITHOUT A FURTHER FILING IF YOU'VE REACHED AN AGREEMENT OR

AND SHE WILL TAKE THE MATTER OFF IN ITS ENTIRETY

10

SOME SORT OF COMPROMISE.

11

THERE.

12

SO, THAT'S SORT OF YOUR INCENTIVE

SO, IF YOU DON'T NEED ME, YOU DON'T NEED TO GET ME

13

ON THE PHONE JUST TO SAY WE DON'T NEED YOU, JUDGE.

14

TAKE IT DOWN.

15

YOU CAN

IF YOU DO NEED ME, THEN, WE WILL SET UP A BRIDGE

16

CALL ON JUNE 17TH AT 9:00, 9:00 IN THE MORNING, AND WE'LL

17

FIGURE OUT WHERE THINGS ARE.

18

YOU MAY NEED TO STAND BY BECAUSE IF FOR A PERSONAL

19

REASON I NEED TO CHANGE THAT TIME THE DAY BEFORE, WE'LL TRY

20

AND GET AN EMAIL NOTICE OUT TO ALL OF YOU.

21
22

MS. MANIFOLD:

YOUR HONOR, AND WE'LL WELCOME TO USE

THE SAME CONFERENCE CALL AND NUMBERS.

23

AND JUST SO PLAINTIFFS ARE CLEAR, OUR SUPPLEMENTAL

24

BRIEF WOULD NOT BE DUE ON JUNE 11TH.

25

DATES OUT.

WE'RE KICKING THOSE

AND IF WE'RE BACK ON THE PHONE WITH THE COURT ON

29
1

THE 17TH, THEN, WE WILL IN ESSENCE RESET THE DATES FOR EITHER

2

A SUPPLEMENTAL FILING -- A SUPPLEMENTAL MEMO AND/OR AN ORAL

3

ARGUMENT.

4

IS THAT CORRECT?

5

THE COURT:

THAT'S -- I HAVEN'T ORDERED AN

6

SUPPLEMENTAL BRIEF, AND I'M NOT GOING TO ACCEPT IT UNTIL I

7

KNOW THAT YOU FOLKS KNOW WHAT THE BRIEF IS ABOUT.

8

MS. MANIFOLD:

9

THE COURT:

10

OKAY.

THANK YOU.

SO, YOU'RE NOT ENTITLED TO THAT AS OF

RIGHT UNDER OUR LOCAL RULE, AND I'M NOT ORDERING IT.

11

OKAY?

12

IF WE'RE GOING TO HAVE A HEARING ON THIS, THEN,

13

WE'RE GOING TO SET A NEW DATE.

14

DATE FOR THE HEARING.

15

SHOT AT WORKING THIS OUT.

16

AND CHANGED, AND THAT YOU NOW HAVE THE BENEFIT OF, DUBIOUS AS

17

IT MAY BE, OF MY THOUGHTS ON THE MOTION.

18
19

AND WE'RE GOING TO SET A NEW

BUT I'D LIKE TO GIVE YOU FOLKS ANOTHER

MS. MANIFOLD:

RECOGNIZING THAT THINGS HAVE MOVED

THANK YOU VERY MUCH, YOUR HONOR.

YOU'VE BEEN VERY HELPFUL.

20

THE COURT:

OKAY.

21

MS. LE MOINE:

22

THE COURT:

23

MS. MANIFOLD:

THANK YOU.

ALL RIGHT.

ANYTHING ELSE?

AND FOR THE CORRECTED FILING, MAY WE

24

GO AHEAD AND JUST HAVE LEAVE TO FILE THE CORRECTED FILING SO

25

WE HAVE THE FORMATTING CORRECT ON WHAT'S BEFORE THE COURT?

30
1

OR SHOULD WE BOTHER?

2

THE COURT:

3

WHAT'S WRONG WITH YOUR FILING?

I DON'T KNOW WHAT'S WRONG WITH IT.

4

MS. MANIFOLD:

THERE WERE --

5

MS. LE MOINE:

I CAN -- SINCE IT'S MY FAULT, I GET

6

-- THE CHART -- ONE OF THE CHART EXCERPTS OF THE PRIVILEGE

7

LOG THAT PLAINTIFFS INCLUDED IN THEIR SECTION STARTING ON

8

PAGE 20 --

9

THE COURT:

10

YES.

MS. LE MOINE: -- DOESN'T -- THE NUMBERS ARE OFF.

11

IT'S NOT -- NOT ALL THE NUMBERS THAT THEY'RE CHALLENGING ARE

12

INCLUDED.

13
14

SO, IT'S ACTUALLY NOT A TERRIBLE ERROR BECAUSE YOU
CAN REFER TO THE ACTUAL LOG.

15

MS. MANIFOLD:

16

THE COURT:

17
18

YES.

YES.

NO, THE LOG -- THE LOG ITSELF IS

-MS. LE MOINE:

SOMEHOW IN THE MYSTERIOUS FORMATTING

19

THAT GOES ON WITH MICROSOFT WORD THAT IS BEYOND MY

20

COMPREHENSION, THE LOGS GOT TO BE -- THE EXCERPTS IN THE

21

DRAFT GOT SCREWED UP.

22

THE COURT:

I WASN'T LOOKING -- I WASN'T LOOKING AT

23

WHAT WAS IN -- WHAT I WAS LOOKING AT WAS EXHIBIT A, WHICH I

24

UNDERSTAND TO BE THE ACTUAL DOCUMENT.

25

MS. LE MOINE:

RIGHT.

YES.

31
1

THE COURT:

IF THAT'S FINE, I DON'T CARE THAT A

2

COPY OF THE DOCUMENT IS NOT A COPY OF THE DOCUMENT.

3

MADE YOUR RECORD, LAWYERS, AND YOUR RECORD IS -- YOUR

4

LAWYERLY RECORD IS THAT EXHIBIT A IS THE FINE DOCUMENT.

5

THAT'S ALL I'LL LOOK AT.

6

YOU'VE

MS. LE MOINE:

AND EXHIBIT B IS THE REVISED AS FOR

8

MS. MANIFOLD:

AND I AGREE ON BOTH.

9

THE COURT:

7

JUNE 2ND.

OKAY.

10

WELL, EXHIBIT B AS IT'S NOW BEEN FILED, YES.

11

MS. MANIFOLD:

12

THE COURT:

13

HAVE RESOLVED IT.

YES.

THAT WAS A BIGGER ISSUE, BUT YOU FOLKS

SO, THAT'S FINE.

14

MS. MANIFOLD:

15

THE COURT:

16

MS. MANIFOLD:

17

(LAUGHTER.)

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THE COURT:

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OKAY.

SO --

THAT WAS MY FAULT.

WE'RE NOT LOOKING BACK.

WE'RE LOOKING

FORWARD, FOLKS.

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MS. MANIFOLD:

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THE COURT:

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MS. LE MOINE:

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RIGHT.

THANK YOU, YOUR HONOR.

IT'S NOT -THANK YOU VERY MUCH, YOUR HONOR.

APPRECIATE IT.

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THE COURT:

NOT AT ALL.

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ANYTHING ELSE WE NEED TO COVER?

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MS. MANIFOLD:

NOT ON THE PLAINTIFF'S SIDE.

MS. LE MOINE:

NOT ON THE DEFENSE SIDE EITHER.

YOU.

THANK YOU, YOUR HONOR.
THE COURT:

ALL RIGHT.

WE'LL SEND OUT A -- WE'LL

SEND OUT A QUICK ELECTRONIC ORDER ON THIS.
THANK YOU FOLKS FOR YOUR TIME TODAY.
IN YOUR DISCUSSIONS.
WE'RE DONE.

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MS. MANIFOLD:

THANK YOU.

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MS. LE MOINE:

THANK YOU, YOUR HONOR.

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(PROCEEDINGS CONCLUDED 2:37 P.M.)

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THANK

AND GOOD LUCK

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C E R T I F I C A T E

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I CERTIFY THAT THE FOREGOING IS A CORRECT

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TRANSCRIPT FROM THE ELECTRONIC SOUND RECORDING OF THE

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PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

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/S/ DOROTHY BABYKIN

6/9/14

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______________________________

___________

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FEDERALLY CERTIFIED TRANSCRIBER

DATED

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DOROTHY BABYKIN

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