Rupa Marya v. Warner Chappell Music Inc

Filing 116

EX PARTE APPLICATION for Leave to Have Plaintiffs' Motion to Compel Heard After the Discovery Cutoff Date filed by plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Declaration of Betsy C. Manifold in Support of Ex Parte Application, # 2 Exhibit 1 [Redacted] Discovery Motion, # 3 Proposed Order)(Manifold, Betsy)

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FRANCIS M. GREGOREK (144785) 1 BETSY C. MANIFOLD (182450) 2 RACHELE R. RICKERT (190634) 3 MARISA C. LIVESAY (223247) 4 5 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 6 750 B Street, Suite 2770 San Diego, CA 92101 7 Telephone: 619/239-4599 Facsimile: 619/234-4599 8 Attorneys for Plaintiffs 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 GOOD MORNING TO YOU ) Case No. CV 13-04460-GHK (MRWx) 12 PRODUCTIONS CORP., et al., ) ) PLAINTIFFS’ EX PARTE 13 ) APPLICATION TO HAVE Plaintiffs, ) MOTION TO COMPEL HEARD 14 ) AFTER DISCOVERY CUTOFF ) DATE 15 v. ) ) 16 ) Judge: Hon. George H. King, Chief Judge WARNER/CHAPPELL MUSIC, ) Courtroom: 650 17 INC., et al. ) ) Fact Discovery Cutoff: July 11, 2014 18 ) Expert Reports: July 25, 2014 Defendants. ) Rebuttal Expert Reports: August 25, 2014 19 ) Expert Discovery Cutoff: Sept. 26, 2014 ) L/D File Jt. MSJ: November 14, 2014 20 ) Pretrial Conference: N/A ) Trial: N/A 21 ) ) 22 ) ) 23 ) 24 25 26 27 28 1 2 I. INTRODUCTION Plaintiffs make this ex parte application for an extension of the current fact 3 discovery cut-off deadline of July 11, 2014. The extension is warranted in order to 4 permit Plaintiffs’ motion under Fed. R. Civ. P. 26(b)(5)(B) for an order: (i) 5 overruling the claim of privilege by defendants Warner/Chappell Music, Inc. and Summy-Birchard, Inc. (“Defendants”), to certain documents produced by non-party 6 American Society of Composers, Authors and Publishers (“ASCAP”), or, in the 7 alternative, permitting a Rule 30(b)(6) deposition to determine the factual basis for 8 the claimed privilege to be fully briefed and heard by Magistrate Judge Michael R. 9 Wilner (“the Motion”). 10 The Court initially set the fact discovery deadline for June 27, 2014. (Dkt 92). 11 On June 9, 2014, the fact discovery deadline was extended by Magistrate Judge 12 Wilner, in consultation with this Court, and at the request of both parties, to July 11, 13 2014 in order to successfully resolve an outstanding discovery dispute relating to 14 Defendants’ privilege log. Plaintiffs have made every effort to complete discovery 15 prior to July 11, 2014 and to resolve this narrow, but important, privilege issue. 16 However, despite Plaintiffs’ diligence, Defendants have manufactured unnecessary 17 obstacles in order for the discovery window to close without the necessary resolution 18 of this remaining discovery dispute. 19 As to the Motion, the pre-filing conference of counsel has already occurred and 20 Plaintiffs, prior to the filing of this ex parte application, provided Defendants’ 21 counsel with Plaintiffs’ portion of Local Rule 37-2.2 Joint Stipulation and noticed the 22 Motion for July 30, 2014, the first available date under the Local Rules. A redacted 23 copy of Plaintiffs’ section of the Local Rule 37-2.3 Joint Stipulation (without the 24 25 26 27 28 supporting declarations) is attached as Exhibit 1 to the Declaration of Betsy C Manifold provided in support of this ex parte application. Plaintiffs do not seek to litigate the merits of their Motion here but simply to inform the Court of their ͲϭͲ 1 significance, the diligence with which the discovery was sought, and the need for a 2 decision on the merits. Absent this relief, under Local Rule 37-2, the Joint 3 Stipulation and Supplemental Memorandum process cannot be fully completed and 4 the motion heard prior to the discovery cut off. Plaintiffs are not at fault in the need 5 for this ex parte relief and good cause exists for an extension of the discovery cut-off 6 7 8 9 10 11 12 deadline for this limited purpose. II. CONTACT INFORMATION FOR OPPOSING COUNSEL Pursuant to Local Rule 7-19, Plaintiffs provide the following contact information for opposing counsel: Kelly M. Klaus Adam I. Kaplan MUNGER TOLLES & OLSON LLP 560 Mission St., 27th Floor 13 San Francisco, CA 94105 14 Telephone: 415/512-4000 15 16 17 18 Glen Pomerantz 19 Melinda E. LeMoine 20 MUNGER TOLLES & OLSON LLP 21 355 South Grand Ave., 35th Floor 22 Los Angeles, CA 90071 23 Telephone: 213/683-9100 24 25 26 27 28 -2- Pursuant to Local Rule 7-19.1, on July 2, 2014, at 9:27 A.M., Plaintiffs informed 1 2 counsel for Defendants (Adam Kaplan) that they intended to file this application on 3 July 3, 2014. By email dated July 2, 2014, Defendants advised that they intend to file a 4 written response, and then Plaintiffs’ served a copy of this ex parte application and 5 supporting papers electronically on Defendants’ counsel prior to filing. See Declaration 6 7 8 9 10 11 12 of Betsy C. Manifold (“Manifold Decl.”), ¶ 3. No hearing date is requested, but, if the Court determines that a hearing would be helpful, Plaintiffs could appear at any time convenient for the Court. III. LEGAL STANDARD An application for ex parte relief is granted when (1) the moving party would be “irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures” and (2) the moving party is without fault in creating the situation requiring ex parte relief. Mission Power Engineering Co. v. Continental Casualty Co., 13 883 F. Supp. 488, 492 (C.D. Cal. 1995). 14 A pre-trial scheduling order may be modified “upon a showing of good cause.” 15 Fed. R. Civ. P. 16(b)(4); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 16 1087 (9th Cir. 2002). Good cause is shown if the schedule “cannot reasonably be met 17 despite the diligence of the party seeking the extension.” Photomedex, Inc. v. Irwin, No. 18 04-CV-0024, 2007 U.S. Dist. LEXIS 56774, at *4. Plaintiffs meet the requirements both for ex parte relief and for the underlying 19 20 request to permit its motion to be heard after the cutoff, and therefore respectfully 21 request that the Court grant this application. 22 IV. PLAINTIFFS ACTED DILIGENTLY IN BRINGING ITS MOTION TO 23 COMPEL,WHICH HAS BEEN PROVIDED TO DEFENDANTS 24 25 26 27 28 UNDER LOCAL RULE 37-2. This narrow discovery dispute (Defendants’ belated claim of privilege over certain ASCAP documents) is important and the discovery at issue was sought and received by Plaintiffs from non-party ASCAP, without any claim of privilege by -3- 1 Defendants, on a timely basis, well before the original discovery cut-off of June 27, 2 2014. Defendants first asserted a claim of privilege in late May of 2014, some three 3 weeks after the initial production of documents by ASCAP. Thereafter, Plaintiffs 4 acted promptly and diligently to resolve the disputed claim of privilege with both 5 Defendants and ASCAP but the delay in resolving this dispute resulted from both 6 ASCAPs’ and the Defendants’ failure to cooperate in this process. A. 7 Properly and Promptly Served During the Discovery Period 8 9 10 11 12 The Discovery Sought to Be Compelled is Important and Was Plaintiffs served a document subpoena on ASCAP on March 28, 2014. Before producing any responsive documents, Plaintiffs’ counsel spoke with Richard H. Reimer, Esquire, ASCAP’s Senior Vice President – Legal Services, and learned that ASCAP was sending approximately 500 pages of documents to Plaintiffs (the “ASCAP Documents”). Plaintiffs received the ASCAP Documents on May 9, 2014, 13 all marked “Confidential,” as did Defendants.1 Manifold Decl., ¶¶ 7 and 8. One 14 week after receiving the ASCAP Documents, on May 16, 2014, Plaintiffs’ counsel 15 asked ASCAP’s counsel, Mr. Reimer, to withdraw the “Confidential” designation for 16 the ASCAP Documents and was advised that Mr. Reimer would need to speak with 17 the Defendants before agreeing to the request, but that he did not oppose the 18 request. Id. Six days after that, Mr. Reimer advised Plaintiffs that Defendants claimed 19 20 certain of the ASCAP Documents were privileged and that counsel for the 21 Defendants would be contacting Plaintiffs directly to provide the details as to the 22 basis for their clients’ claim of privilege. Manifold Decl., ¶ 10. Two of the ASCAP 23 Documents, letters from Richard Wincor, Esquire, of Coudert Brothers to David K. 24 25 26 Sengstack, President of Summy-Birchard Company Warner/Chappell’s predecessor-in-interest (collectively, the “Coudert Letters”), 1 All of the documents were marked “Confidential” pursuant to a stipulated protective 27 order approved by this Court on May 5, 2014. See Dkts. 97 and 98. 28 (“Summy-Birchard”), -4- 1 discussed in detail the Defendants’ predecessors’ disputed ownership of the 2 song. Id. As required under Fed. R. Civ. P. 26(b)(5)(B), copies of the Coudert 3 Letters were sequestered by Plaintiffs’ counsel and will be submitted to the 4 Magistrate Judge under seal for a determination of Defendants’ claim of 5 privilege. Manifold Decl., ¶ 11; see also Fed. R. Civ. P. 26(b)(5)(B) (“After being 6 7 8 9 10 11 12 notified, a party . . . may promptly present the information to the court under seal for a determination of the claim.”). To date, none of the ASCAP Documents appeared on the privilege logs produced by Defendants. Id. B. Plaintiffs Diligently Attempted to Meet and Confer with Defendants and To Create a Factual Record with Regard to the Defendants’ Claim of Privilege After receiving Mr. Reimer’s May 22nd letter, Plaintiffs’ counsel exchanged correspondence and participated in a series of telephone calls with Defendants’ 13 counsel regarding their belated claim of privilege. Manifold Decl., ¶ 12. The parties 14 vigorously dispute whether any of the ASCAP Documents, the Coudert Letters in 15 particular, are privileged, in light of the fact that the ASCAP Documents were in the 16 hands of a third-party (ASCAP) with whom Defendants share no common legal 17 interest, and under circumstances plainly indicating that Defendants’ purported 18 privilege in the ASCAP Documents, if any, has been waived. Whether the ASCAP 19 Documents are privileged depends, among other things, upon the nature of the 20 relationship between ASCAP and Summy-Birchard Co. (the Defendants’ 21 predecessor-in-interest), their respective interests (if any) in the Song’s copyright, 22 their understanding (if any) regarding the documents, the reason(s) why the 23 documents were created, the reason(s) why Summy-Birchard Co. sent the documents 24 25 26 27 28 to ASCAP, and the circumstances under which ASCAP produced the ASCAP Documents to Plaintiffs. To establish facts the Court may deem necessary to determine whether any of the ASCAP Documents are privileged, on May 22, 2014, Plaintiffs noticed the -5- 1 deposition of Defendants pursuant to Fed. R. Civ. P. 30(b)(6) for the corporation’s 2 testimony about the extent of ASCAP’s interest (if any) in the Song and the royalties 3 it collects for public performances of the Song and whether ASCAP produced the 4 documents knowingly and intentionally. Manifold Decl., ¶ 13. On May 27, 2014, 5 Defendants opposed the Fed. R. Civ. P. 30(b)(6) deposition notice on 6 7 8 9 10 11 12 various grounds and declined to produce a witness. Manifold Decl, ¶ 14. Plaintiffs also subpoenaed ASCAP under Fed. R. Civ. P. 45 and 30(b)(6) for the deposition of a representative of ASCAP most knowledgeable about the scope or validity of any copyright to the Song, disputes regarding the scope and validity of any copyright to the Song, the distribution of fees or royalties from the Song, the nature of the relationship between ASCAP and Summy-Birchard Co., the services provided by ASCAP to Summy-Birchard Co., and the circumstances surrounding ASCAP’s production of the Documents to Plaintiffs pursuant to the document 13 subpoena. Manifold Decl., ¶ 15. ASCAP first moved to quash the subpoena, but the 14 parties resolved that dispute and ASCAP withdrew its motion to quash. Manifold 15 Decl., ¶¶ 16 and 17. ASCAP’s deposition will take place in New York on July 11, 16 2014. Id. at ¶ 17. 17 Plaintiffs have moved to determine whether Defendants have any privilege in 18 the documents in question, or whether Defendants (or their predecessors-in-interest) 19 waived any privilege they may have had in the documents when they voluntarily 20 produced the documents to a third-party, ASCAP, with whom they did not share any 21 privilege. The Magistrate Judge may also determine that this privilege dispute can 22 best be resolved upon a fully developed factual record (such as a deposition) and an 23 extension of the discovery cut-off for this limited purpose is also warranted. See 24 25 26 27 28 Manifold Decl., Ex. 1. C. The Motion Will Be Fully Briefed and Ready to Be Heard by Magistrate Judge Wilner on July 30, 2014 Since Plaintiff’s Motion cannot be filed and argued prior to the discovery cut-off, -6- 1 the Magistrate Judge will likely consider the Motion to be untimely absent an 2 appropriate extension of the discovery cut-off date to permit the motion to be heard and 3 decided. Plaintiffs seek this ex parte relief so the motion may be heard on July 30, 2014 4 and the relief therein granted or denied by the Magistrate Judge. D. Defendants Will Not Be Prejudiced By This Motion, and Ex 5 Parte Relief Is Necessary 6 As set forth above, Plaintiffs acted diligently in serving its discovery requests 7 8 9 10 11 and deposition notices, meeting and conferring with Defendants and ASCAP, and filing its motion to compel. Ex parte relief is required so that, if leave is granted, the motion may be heard by Judge Wilner on July 30, and so that any discovery ordered by Judge Wilner will be disclosed well in advance of the deadline for summary judgment motions. 12 There is no prejudice to Defendants in having this motion heard now. The 13 information sought is very limited in scope, and has already been produced by 14 ASCAP. 15 16 V. CONCLUSION For the reasons stated above, Plaintiffs respectfully submit that this Ex Parte 17 Application should be granted, and requests that Plaintiffs be permitted to have its 18 motion to compel fully briefed and heard by Magistrate Judge Wilner. Respectfully submitted, 19 3 2014 Dated: July __, 20 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 21 22 23 24 25 26 27 28 By: /s/Betsy C. Manifold BETSY C. MANIFOLD FRANCIS M. GREGOREK BETSY C. MANIFOLD RACHELE R. RICKERT -7- 1 2 3 4 5 6 MARISA C. LIVESAY 750 B Street, Suite 2770 San Diego, CA 92101 Telephone: 619/239-4599 Facsimile: 619/234-4599 15 WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP MARK C. RIFKIN (pro hac vice) JANINE POLLACK (pro hac vice) BETH A. LANDES (pro hac vice) GITI BAGHBAN (284037) 270 Madison Avenue New York, NY 10016 Telephone: 212/545-4600 Facsimile: 212-545-4753 16 Interim Lead Counsel for Plaintiffs 7 8 9 10 11 12 13 14 17 18 19 20 21 22 23 24 25 26 27 28 RANDALL S. NEWMAN PC RANDALL S. NEWMAN (190547) 37 Wall Street, Penthouse D New York, NY 10005 Telephone: 212/797-3737 HUNT ORTMANN PALFFY NIEVES DARLING & MAH, INC. ALISON C. GIBBS (257526) OMEL A. NIEVES (134444) KATHLYNN E. SMITH (234541) -8- 301 North Lake Avenue, 7th Floor Pasadena, CA 91101 Telephone: 626/440-5200 Facsimile: 626/796-0107 1 2 3 4 DONAHUE GALLAGHER WOODS LLP WILLIAM R. HILL (114954) ANDREW S. MACKAY (197074) DANIEL J. SCHACHT (259717) 1999 Harrison Street, 25th Floor Oakland, CA 94612-3520 Telephone: 510/451-0544 Facsimile: 510/832-1486 5 6 7 8 9 10 11 12 19 GLANCY BINKOW & GOLDBERG LLP LIONEL Z. GLANCY (134180) MARC L. GODINO (188669) 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: 310/201-9150 Facsimile: 310/201-9160 20 Attorneys for Plaintiffs 13 14 15 16 17 18 21 22 23 24 25 26 WARNERCHAPPELL:20968.EXPARTE 27 28 -9-

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