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

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Interim Lead Class Counsel for Plaintiffs and Proposed Class

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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Plaintiffs,
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v.
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WARNER/CHAPPELL MUSIC, )
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INC., et al.,
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Defendants.
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GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,

Lead Case No. CV 13-04460-GHK (MRWx)
DECLARATION OF BETSY C.
MANIFOLD IN SUPPORT OF
PLAINTIFFS’ EX PARTE
APPLICATION TO HAVE MOTION TO
COMPEL HEARD AFTER DISCOVERY
CUT-OFF
Judge: Hon. George H. King, Chief Judge
Courtroom: 650
Fact Discovery Cutoff: July 11, 2014
Expert Reports: July 25, 2014
Rebuttal Expert Reports: August 25, 2014
Expert Discovery Cutoff: Sept. 26, 2014
L/D File Jt. MSJ: November 14, 2014
Pretrial Conference: N/A
Trial: N/A

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

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1.

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

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

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

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

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

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2.

I submit this declaration in support of the motion by Plaintiffs’ Ex Parte

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Application to Have Motion to Compel Heard After Discovery Cut-off Date.

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Notice of Application Pursuant to Local Rule 7-19.1

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3.

On the evening of July 1, 2014, I e-mailed counsel for the defendants

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(Kelly Klaus, Melinda LeMoine and Adam Kaplan) to advise them that plaintiffs

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intended to file this ex parte application. On July 2, 2012, at 9:27 A.M., I spoke

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with Adam Kaplan, one of the counsel for Defendants, and orally advised him that

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Plaintiffs intended to file this ex parte application on Thursday, July 3, 2014 seeking

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to have Plaintiffs’ motion to compel heard after the discovery cut-off date. By email

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dated July 2, 2014, Defendants advised that they intend to file a written response,

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and then on July 3, 2014, Plaintiffs’ served a copy of this ex parte application and

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supporting papers electronically on Defendants’ counsel prior to filing.

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Plaintiffs’ Motion to Compel

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4.

Plaintiffs make this ex parte application for an extension of the current

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fact discovery cut-off deadline of July 11, 2014. The extension is sought to permit

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Plaintiffs’ motion under Fed. R. Civ. P. 26(b)(5)(B) for an order: (i) overruling the

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claim of privilege by defendants Warner/Chappell Music, Inc. and Summy-Birchard,

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Inc. (“Defendants”), to certain documents produced by non-party American Society

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of Composers, Authors and Publishers (“ASCAP”), or, in the alternative, permitting

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a Fed. R. Civ. P. 30(b)(6) deposition to determine the factual basis for the claimed

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privilege to be fully briefed and heard by Magistrate Judge Michael R. Wilner (“the

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Motion”) on July 30, 2014, after the discovery cut-off date.

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5.

The pre-filing conference of counsel has already occurred and

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Plaintiffs, prior to the filing of this ex parte application, provided Defendants’

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counsel with Plaintiffs’ portion of the Local Rule 37-2.2 Joint Stipulation and

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noticed the Motion for July 30, 2014, the first available motion date under the Rules,

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on Judge Wilner’s motion calendar. A redacted copy of Plaintiffs’ section of the

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Local Rule 37-2.3 Joint Stipulation (without the supporting declarations) is attached

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hereto as Exhibit 1. Plaintiffs do not seek to litigate the merits of their Motion here

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but simply to inform the Court of their significance of the issue, the diligence with

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which the discovery was sought, and the need for a decision on the merits.

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6.

Since the Motion cannot be filed and argued prior to the July 11, 2014

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discovery cut-off date, the Magistrate Judge will likely consider the Motion to be

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untimely absent an appropriate extension of the discovery cut-off date to permit the

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motion to be heard and decided. Therefore, Plaintiffs seek this ex parte relief so the

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motion may be heard on July 30, 2014 and the relief therein granted or denied by the

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Magistrate Judge.

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ASCAP Documents At Issue

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7.

Plaintiffs served a document subpoena on ASCAP on March 28, 2014.

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Before producing any responsive documents, Plaintiffs’ counsel spoke with Richard

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H. Reimer, Esquire, ASCAP’s Senior Vice President – Legal Services, and learned

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that ASCAP was sending approximately 500 pages of documents to Plaintiffs (the

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“ASCAP Documents”). Plaintiffs received ASCAP’s documents on May 9, 2014, as

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did Defendants.

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8.

All of the documents were marked “Confidential” pursuant to a

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stipulated protective order approved by this Court on May 5, 2014. See Dkts. 97 and

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98. One week after receiving the documents from ASCAP, on May 16, 2014,

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Plaintiffs’ counsel, spoke by telephone with Mr. Reimer to ask ASCAP to withdraw

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the “Confidential” designation for the ASCAP Documents.

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After a short conversation, Mr. Reimer said he would need to speak with

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the Defendants before agreeing to the request, but that he did not oppose

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withdrawing the “Confidential” designation for the certain ASCAP Documents.

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Defendants’ Belated Claim of Privilege

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10.

Six days after that, Mr. Reimer advised Plaintiffs that Defendants

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claimed certain of the ASCAP Documents were privileged and that counsel for the

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defendants would be contacting Plaintiffs directly to provide the details as to the

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basis for their clients’ claim of privilege. Two of the ASCAP Documents, letters

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from Richard Wincor, Esquire, of Coudert Brothers to David K. Sengstack, President

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of

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predecessor-in-interest (collectively, the “Coudert Letters”), discussed in detail the

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Defendants’ predecessors’ disputed ownership of the song.

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Summy-Birchard

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Company

(“Summy-Birchard”),

Warner/Chappell’s

As required under Fed. R. Civ. P. 26(b)(5)(B), copies of the ASCAP

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Documents at issue will be submitted to the Magistrate Judge under seal for a

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determination of Defendants’ claim of privilege. See Fed. R. Civ. P. 26(b)(5)(B)

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(“After being notified, a party . . . may promptly present the information to the court

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under seal for a determination of the claim.”). To date, none of the ASCAP

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Documents have appeared on the various privilege logs produced by Defendants.

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12.

After receiving Mr. Reimer’s May 22nd letter, Plaintiffs’ counsel

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exchanged correspondence and participated in a series of telephone calls with

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Defendants’ counsel and ASCAP regarding their belated claim of privilege. The

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parties vigorously dispute whether any of the ASCAP Documents, are privileged, in

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light of the fact that the ASCAP Documents were in the hands of a third-party

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(ASCAP), and under circumstances plainly indicating that Defendants’ purported

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privilege in the ASCAP Documents, if any, has been waived.

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Discovery Noticed by Plaintiffs

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13.

To establish facts the Court may deem necessary to determine whether

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any of the ASCAP Documents are privileged, on May 22, 2014, Plaintiffs noticed the

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deposition of Defendants pursuant to Fed. R. Civ. P. 30(b)(6) for the corporation’s

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testimony about the extent of ASCAP’s interest (if any) in the Song and the royalties

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it collects for public performances of the Song and whether ASCAP produced the

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documents knowingly and intentionally.

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14.

On May 27, 2014, Defendants opposed the Fed. R. Civ. P. 30(b)(6)

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deposition notice on various grounds and declined to produce a witness. On June

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16, 2014, the parties met and conferred with regard to this discovery but could not

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resolve their dispute.
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Plaintiffs also subpoenaed ASCAP under Fed. R. Civ. P. 45 and

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30(b)(6) for the deposition of a representative of ASCAP most knowledgeable about

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the scope or validity of any copyright to the Song, disputes regarding the scope and

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validity of any copyright to the Song, the distribution of fees or royalties from the

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Song, the nature of the relationship between ASCAP and Summy-Birchard Co., the

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services provided by ASCAP to Summy-Birchard Co., and the circumstances

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surrounding ASCAP’s production of the Documents to Plaintiffs pursuant to the

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document subpoena.

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ASCAP Motion to Quash

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On June 12, 2014, ASCAP moved in the United States District Court for

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the Southern District of New York for an order pursuant to Fed. R. Civ. P. 45(d)(3)

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to quash the subpoena served on ASACP by Plaintiffs (“ASCAP Motion to Quash”).

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On June 19, 2014, Plaintiffs opposed the ASCAP Motion to Quash, to which ASCAP

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filed a Reply in further support of the Motion to Quash. See Good Morning to You

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Prod. Corp., et al. v. Warner/Chappell Music, Inc. and Summy-Birchard, Inc.

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(S.D.N.Y. June 16, 2014) Misc Case No. 14-mc-00179.

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On June 30, 2014, ASCAP withdrew its Motion to Quash and agreed to

appear for deposition for July 11, 2014.
I declare under penalty of perjury that the foregoing is true and correct.
Executed this 3rd day of July 2014, in the City of San Diego, State of California.

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By:

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/s/Betsy C. Manifold
BETSY C. MANIFOLD