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)

FRANCIS M. GREGOREK (144785)
1 [e-mail]
BETSY C. MANIFOLD (182450)
2 [e-mail]
RACHELE R. RICKERT (190634)
3 [e-mail]
MARISA C. LIVESAY (223247)
4 [e-mail]
5 WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
6 750 B Street, Suite 2770
San Diego, CA 92101
7 Telephone: [phone]
Facsimile: 619/234-4599
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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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GOOD MORNING TO YOU
) Case No. CV 13-04460-GHK (MRWx)
12 PRODUCTIONS CORP., et al.,
)
) PLAINTIFFS’ EX PARTE
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) APPLICATION TO HAVE
Plaintiffs,
) MOTION TO COMPEL HEARD
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) AFTER DISCOVERY CUTOFF
) DATE
15 v.
)
)
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) Judge: Hon. George H. King, Chief Judge
WARNER/CHAPPELL MUSIC,
) Courtroom: 650
17 INC., et al.
)
) Fact Discovery Cutoff: July 11, 2014
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) Expert Reports: July 25, 2014
Defendants.
) Rebuttal Expert Reports: August 25, 2014
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) Expert Discovery Cutoff: Sept. 26, 2014
) L/D File Jt. MSJ: November 14, 2014
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) Pretrial Conference: N/A
) Trial: N/A
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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
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American Society of Composers, Authors and Publishers (“ASCAP”), or, in the
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alternative, permitting a Rule 30(b)(6) deposition to determine the factual basis for
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the claimed privilege to be fully briefed and heard by Magistrate Judge Michael R.
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Wilner (“the Motion”).
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The Court initially set the fact discovery deadline for June 27, 2014. (Dkt 92).
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On June 9, 2014, the fact discovery deadline was extended by Magistrate Judge
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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.
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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
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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
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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

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San Francisco, CA 94105

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Telephone: [phone]

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[e-mail]

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[e-mail]

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Glen Pomerantz

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Melinda E. LeMoine

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MUNGER TOLLES & OLSON LLP

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355 South Grand Ave., 35th Floor

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Los Angeles, CA 90071

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Telephone: [phone]

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[e-mail]
[e-mail]

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Pursuant to Local Rule 7-19.1, on July 2, 2014, at 9:27 A.M., Plaintiffs informed

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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
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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).
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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

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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

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COMPEL,WHICH HAS BEEN PROVIDED TO DEFENDANTS

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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
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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
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ASCAPs’ and the Defendants’ failure to cooperate in this process.
A.

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Properly and Promptly Served During the Discovery Period

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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

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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.
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Sengstack,

President

of

Summy-Birchard

Company

Warner/Chappell’s predecessor-in-interest (collectively, the “Coudert Letters”),
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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.
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(“Summy-Birchard”),

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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
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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
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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
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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
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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.
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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
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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,
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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
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Parte Relief Is Necessary

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As set forth above, Plaintiffs acted diligently in serving its discovery requests

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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.

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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.
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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,
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3 2014
Dated: July __,
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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
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By: /s/Betsy C. Manifold
BETSY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
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[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
MARK C. RIFKIN (pro hac vice)
[e-mail]
JANINE POLLACK (pro hac vice)
[e-mail]
BETH A. LANDES (pro hac vice)
[e-mail]
GITI BAGHBAN (284037)
[e-mail]
270 Madison Avenue
New York, NY 10016
Telephone: [phone]
Facsimile: 212-545-4753

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Interim Lead Counsel for Plaintiffs

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RANDALL S. NEWMAN PC
RANDALL S. NEWMAN (190547)
[e-mail]
37 Wall Street, Penthouse D
New York, NY 10005
Telephone: [phone]
HUNT ORTMANN PALFFY NIEVES
DARLING & MAH, INC.
ALISON C. GIBBS (257526)
[e-mail]
OMEL A. NIEVES (134444)
[e-mail]
KATHLYNN E. SMITH (234541)
[e-mail]
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301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone: [phone]
Facsimile: 626/796-0107

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DONAHUE GALLAGHER
WOODS LLP
WILLIAM R. HILL (114954)
[e-mail]
ANDREW S. MACKAY (197074)
[e-mail]
DANIEL J. SCHACHT (259717)
[e-mail]
1999 Harrison Street, 25th Floor
Oakland, CA 94612-3520
Telephone: [phone]
Facsimile: 510/832-1486

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GLANCY BINKOW &
GOLDBERG LLP
LIONEL Z. GLANCY (134180)
[e-mail]
MARC L. GODINO (188669)
[e-mail]
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310/201-9160

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Attorneys for Plaintiffs

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WARNERCHAPPELL:20968.EXPARTE

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