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)

EXHIBIT 1

Ex. 1
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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
8
Interim Class Counsel for Plaintiff and the Proposed Class
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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) Case No. CV 13-04460-GHK (MRWx)
GOOD MORNING TO YOU
)
13 PRODUCTIONS CORP., et al.,
) [REDACTED] NOTICE OF MOTION
) AND MOTION FOR ORDER: (i)
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Plaintiffs,
) OVERRULING DEFENDANTS’
) CLAIM OF PRIVILEGE IN
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v.
) DOCUMENTS PRODUCED BY A
) NON-PARTY, OR PERMITTING A
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) SECOND RULE 30(B)(6)
WARNER/CHAPPELL MUSIC,
) DEPOSITION TO DETERMINE THE
17 INC., et al.
) FACTUAL BASIS FOR THAT
) CLAIM; (ii) GRANTING RELIEF
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Defendants.
) FROM THE DISCOVERY CUT-OFF
) TO CONDUCT THAT DEPOSITION;
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) (iii); AND [PROPOSED] ORDER
) THEREON
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)
July 30, 2014
) Date:
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) Time:
9:30 A.M.
) Judge:
Hon. Michael R. Wilner
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H-9th Floor
) Room:
) Disc. Cutoff:
July 11, 2014
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N/A
) Pretrial Conf.:
) Trial Date:
N/A
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) L/D File Jt. MSJ: 11/14/14
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Ex. 1
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TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE

2 ATTORNEYS OF RECORD:
3

PLEASE TAKE NOTICE that on July 30, 2014, at 9:30 a.m., or as soon

4 thereafter as this matter may be heard before the Honorable Michael R. Wilner in
5 Courtroom H-9th Floor of this Court, located at 111 N. Spring Street, Los Angeles,
6 California, plaintiffs Good Morning To You Productions Corp., Robert Siegel, Rupa
7 Marya d/b/a Rupa & The April Fishes, and Majar Productions, LLC (“Plaintiffs”),
8 will, and hereby do, move this Court pursuant to Federal Rule of Civil Procedure
9 25(b)(5)(B) for an order: (i) overruling the claim of privilege by defendants
10 Warner/Chappell Music, Inc. and Summy-Birchard, Inc. (“Defendants”), to certain
11 documents produced by non-party American Society of Composers, Authors and
12 Publishers , or permitting a Rule 30(b)(6) deposition to determine the factual basis
13 for that claim of privilege; and (ii) granting relief from the fact discovery deadline of
14 July 11, 2014, to permit the relief sought by this Motion.
15

This Motion is based upon this notice of motion, the parties’ Local Rule 37-2

16 Joint Stipulation, the declarations of Mark C. Rifkin and Betsy C. Manifold in
17 Support of Plaintiffs’ Motion, all pleadings, discovery, memorandum of points and
18 authorities, supplemental memoranda of law, oral or documentary evidence
19 proffered in support thereof, arguments of counsel, and any other matters as the
20 Court deems proper.
21

This Motion is made following the conference of counsel pursuant to Local

22 Rule 37-1, which took place on June 16, 2014.
23 Dated: July __, 2014
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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:

BETSTY C. MANIFOLD

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Ex. 1
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FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[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]

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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]
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone: [phone]
Facsimile: 626/796-0107

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Ex. 1
CV 13-04460-GHK (MRWx)
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-2PLS.’ NOTICE OF MOTION AND
MOTION TO COMPEL

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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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Ex. 1
CV 13-04460-GHK (MRWx)
9

-3PLS.’ NOTICE OF MOTION AND
MOTION TO COMPEL

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
750 B Street, Suite 2770
6 San Diego, CA 92101
619/239-4599
7 Telephone: [phone]
Facsimile:
8 Interim Class Counsel for Plaintiff and the Proposed Class
9

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,

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Plaintiffs,
v.
WARNER/CHAPPELL MUSIC,
INC., et al.
Defendants.

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Case No. CV 13-04460-GHK (MRWx)
[REDACTED] LOCAL RULE 37-2:
JOINT STIPULATION FOR ORDER:
(i) OVERRULING DEFENDANTS’
CLAIM OF PRIVILEGE IN
DOCUMENTS PRODUCED BY A
NON-PARTY, OR PERMITTING A
SECOND RULE 30(B)(6)
DEPOSITION TO DETERMINE THE
FACTUAL BASIS FOR THAT
CLAIM; (ii) GRANTING RELIEF
FROM THE DISCOVERY CUT-OFF
TO CONDUCT THAT DEPOSITION
Date:
July 30, 2014
Time:
9:30 A.M.
Judge:
Hon. Michael R. Wilner
Room:
H-9th Floor
Disc. Cutoff:
July 11, 2014
Pretrial Conf.:
N/A
Trial Date:
N/A
L/D File Jt. MSJ: 11/14/14

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Ex. 1
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TABLE OF CONTENTS
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CV 13-04460-GHK (MRWx)

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Ex. 1
LR 37-2 JOINT STIPULATION
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ON PLTFS’ MOTION TO COMPEL

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TABLE OF AUTHORITIES
Page(s)

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CV 13-04460-GHK (MRWx)

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Ex. 1
LR 37-2 JOINT STIPULATION
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ON PLTFS’ MOTION TO COMPEL

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2

JOINT STIPULATION PURSUANT TO LOCAL RULE 37-2
Pursuant to Local Rule 37-2, the parties respectfully submit the following joint

3 stipulation regarding the motion by plaintiffs Good Morning To You Productions
4 Corp., Robert Siegel, Rupa Marya d/b/a Rupa & The April Fishes, and Majar
5 Productions, LLC (“Plaintiffs”) under Federal Rule of Civil Procedure 25(b)(5)(B)
for an order: (i) overruling the claim of privilege by defendants Warner/Chappell
6
Music, Inc. and Summy-Birchard, Inc. (“Defendants”), to certain documents
7
produced by non-party American Society of Composers, Authors and Publishers
8
(“ASCAP”), or permitting a Rule 30(b)(6) deposition to determine the factual basis
9
for that claim of privilege; and (ii) granting relief from the fact discovery deadline of
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July 11, 2014 (the “Motion”), to permit the other relief sought by this Motion.
11
I.
INTRODUCTION
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A.
Plaintiffs’ Statement
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In this class action, Plaintiffs seek, inter alia, a declaration pursuant to the
14 Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, that: (i) Defendants do not own
15 any valid copyright to the song Happy Birthday to You (the “Song”); (ii) any
16 copyright to the Song that Defendants do own is limited in scope to just specific
17 piano arrangements and an obscure second verse; and (iii) the Song itself is dedicated
18 to public use and in the public domain (hereafter “Claim One”). See generally Fourth
19 Amend. Consol. Class Action Compl. (“FAC”) Dkt. 95, filed Apr. 24, 2014 by Dkt.
20 96). Upon the Court’s Order, Claim One was bifurcated from Plaintiffs’ other claims
21 and the scope of discovery has been limited to the issues raised by Claim One only.
22 See Scheduling Conf. and Order Entering Scheduling Dates (Dkt. 92, Mar. 24, 2014)
23 (“Scheduling Order”) appended hereto as Addendum A.
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The Court initially set the fact discovery deadline for June 27, 2014. Id. at 1, ¶
2. On June 9, 2014, the fact discovery deadline was extended to July 11, 2014.
Scheduling Not. (Dkt. 111, June 17, 2014). Plaintiffs have made every effort to
complete discovery prior to July 11, 2014. However, as part of a deliberate strategy
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Ex. 1
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1 to delay discovery, Defendants repeatedly raised baseless objections, confused the
2 record, and manufactured obstacles in order for the initial discovery window to close
3 without the necessary discovery sought.
4

As the Court is aware, the ownership and origin of the Song and the copyrights

5 that Defendants claim in it are, at best, obscure. Despite more than a century of
6 documented public performances, decades of disputed claims, and the Song’s
7 ubiquity, no court has ever determined whether Defendants (or any of their
8 predecessors-in-interest) own any rights to the Song. Indeed, while the Song has
9 been used and performed innumerable times over the past 80 years without
10 Defendants’ (or their predecessors’) permission, no one has ever been sued for
11 infringing any copyright to the Song. That uncertainty has been no accident. In fact,
12 because Defendants and their predecessors-in-interest cannot prove they own the
13 Song or the scope of the disputed copyrights in question, they have chosen instead to
14 obfuscate the record for decades, relying upon empty threats of copyright
15 infringement and the draconian penalties that such actions might impose, to
16 intimidate Plaintiffs and countless others into paying for the right to use or perform a
17 song that belongs to the public.
18

Defendants’ obdurate conduct during discovery continues their customary

19 effort to keep the historical record of their alleged ownership of any copyright to the
20 Song and the scope of those copyrights shrouded in uncertainty. Citing no statute,
21 rule, case law, or any other authority, Defendants opposed the deposition of their
22 long-term employee Jeremy Blietz on the basis of an entirely unrelated privilege
23 dispute despite their Rule 30(b)(6) deponent identified him as the primary source of
24 his information in preparing for the deposition.1 That privilege dispute, which is the
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1

On June 30, 2014, Defendants finally consented to produce Mr. Blietz for his
deposition, which is scheduled to take place on July 10, 2014, in Los Angeles, California.
28 Manifold Decl., Ex. (attaching email from Defendants’ counsel dated June 30, 2014).

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Ex. 1
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1 subject of this Motion, concerns documents produced by a non-party, the American
2 Society of Composers, Authors and Publishers (“ASCAP”), a performance rights
3 society that grants non-exclusive blanket licenses for public performances of music
4 on behalf of more than 500,000 different composers, authors, and publishers.
5

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

6 producing any responsive documents, Richard H. Reimer, Esquire, ASCAP’s Senior
7 Vice President – Legal Services, spoke by telephone with Mark C. Rifkin, Esquire,
8 one of Plaintiffs’ counsel, to advise him that ASCAP was sending approximately 500
9 pages of documents to Plaintiffs. Confidential Decl. of Mark C. Rifkin in Support of
10 Pls.’ Mot. (“Rifkin Decl.”) at 3, ¶ 12. During the course of that call, Mr. Reimer told
11 Mr. Rifkin that ASCAP was producing two documents in particular that provided
12 detailed a analysis of the disputed ownership of the copyright that Plaintiffs would
13 find very interesting. Id. Mr. Reimer’s comments made it clear that: (i) ASCAP
14 intended to produce the documents to Plaintiffs; (ii) ASCAP did not regard them as
15 privileged or confidential; and (iii) ASCAP wanted to be sure that Plaintiffs saw the
16 particular documents in question.
17

Rule 26(b)(5)(B) also permits the receiving party to “present the information to

18 the court under seal for a determination of the claim.” Fed. R. Civ. P. 26(b)(5)(B).
19 See, e.g., Larsen v. Coldwell Banker Real Estate Corp., No. 10-00401, 2012 U.S.
20 Dist. LEXIS 12901, at * 1 (C.D. Cal. Feb. 2, 2012) (after plaintiffs moved under Rule
21 26(b)(5)(B), Court conducted in camera review of documents in which defendants
22 asserted privilege). That is the purpose of this motion and Plaintiffs have accordingly
23 submitted the ASCAP Documents under seal for such a determination. . Until the
24 Court determines whether Defendants have any privilege in the ASCAP Documents,
25 the documents remain sequestered and may not be used for any purpose, including in
26 this litigation.
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Plaintiffs believe the privilege dispute can best be resolved upon a fully

28 developed factual record.

To establish facts the Court may deem necessary to
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Ex. 1
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1 determine whether any of the ASCAP Documents are privileged, Plaintiffs again
2 noticed the deposition of Defendants pursuant to Rule 30(b)(6) for the corporation’s
3 testimony about the extent of ASCAP’s interest (if any) in the Song and the royalties
4 it collects for public performances of the Song and whether ASCAP produced the
5 documents knowingly and intentionally.
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II.

7

PLAINTIFFS’ POSITION
Relevant Background Relating to Discovery in the Litigation

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Historically, and in the early part of this case, Defendants (and their

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10 predecessors) have based their claim of copyright ownership only upon a single
11 copyright, Reg. No. E51990, registered on December 6, 1935. That copyright
12 covered a specific piano arrangement composed as a work for hire by Preston Ware
13 Orem, a director and Vice President of the Clayton F. Summy Co. (one of
14 Defendants’ predecessors-in-interest) (“Summy Co.”). According to the copyright
15 records, the work also included “text.” However, the copyright records do not
16 indicate what “text” was included in the work or who wrote it, and there is no known
17 copy of the work deposited with that registration.
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In any event, copyright Reg. No. E51990 was renewed by Summy Birchard

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24 Co. (another one of Defendants’ predecessors-in-interest) (“Summy Birchard”) on
25 December 6, 1962, under Reg. No. R306186. Whatever work the original copyright
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Plaintiffs have filed an Application to File Under Seal as required by Rule
28 26(b)(5)(B) and the Protective Order (Dkt. 98) pursuant to the Court’s electronic filing
protocols for the Pilot Program.

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Ex. 1
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1 may have covered, that copyright (No. E51990) expired in 1963. According to the
2 1962 Catalog of Copyright Entries (“Copyright Catalog”), the official publication of
3 copyright registrations and renewals published by the United States Office of
4 Copyright, the renewal copyright issued under No. R306186, is limited to Dr. Orem’s
5 piano arrangement only, not any “text.” Declaration of Betsy C. Manifold in Support
6 of Pls.’ Mot. (“Manifold Decl.”), Ex. 12 (a true and correct copy excerpts from the
7 1962 U.S. Copyright Office Catalog of Copyright Entries, Musical Compositions).
8

Recently, because Defendants cannot prove the scope of either Reg. No.

9 E51990 or Reg. No. R306186, they have begun to rely in this action upon a second
10 copyright, Reg. No. E51988, also registered on December 6, 1935. That second
11 copyright covered a different piano arrangement composed by R.R. Forman, another
12 employee for hire of Summy Co. This work’s copyright claim also included “revised
13 text.” A deposit copy does exist for the work registered under No. E51988, which
14 includes as the “revised text,” an obscure second verse for the Song, apparently
15 written by Mrs. Forman.
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Copyright Reg. No. E51988 was also renewed on December 6, 1962, under

17 Reg. No. R306185. And, like copyright Reg. No. E51990, the original copyright
18 Reg. No. E51988 also expired in 1963. According to the 1962 Copyright Catalog,
19 renewal copyright Reg. No. R306185 was claimed by Summy-Birchard Music, Inc.
20 (by way of change of name from Summy Co.), for Mrs. Forman’s piano arrangement
21 and the “revised text” she apparently wrote.
22

For example, as part of that effort, in response to a deposition notice issued by

23 Plaintiffs under Federal Rule of Civil Procedure 30(b)(6) on April 23, 2014,
24 subsequently amended on May 19, 2014 (Manifold Decl., Exs. 1 & 2), Defendants
25 designated Mr. Thomas Marcotullio, Esquire, a mergers and acquisitions lawyer
26 employed by Warner Music Group – not a party to this action; rather, a parent of
27 defendant Warner/Chappell.

On June 3, 2014, Defendants’ produced Mr.

28 Marcotullio for deposition.
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Ex. 1
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Ex. 1
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Plainly, Mr. Blietz has first-hand knowledge of

2 relevant facts or where those facts might be obtained.
Defendants should have produced Mr. Blietz to testify as their Rule 30(b)(6)

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4 designee, if not in place of Mr. Marcotullio, then certainly in addition to him.
5 Nonetheless, after Plaintiffs learned of Mr. Blietz’s identity, on June 5, 2014, they
6 noticed his deposition under Rule 30(b)(1). For the next several weeks, Defendants
7 refused to produce Mr. Blietz, even though he is a knowledgeable percipient witness,
8 conjuring a fictitious and unsupportable objection to the deposition.
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ASCAP Production of Documents Responsive to Plaintiffs’ Subpoena

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Plaintiffs received ASCAP’s documents on May 9, 2014, as did Defendants.
Id. at 3, ¶ 13. All of the documents were marked “Confidential” pursuant to a
stipulated protective order approved by this Court on May 5, 2014. See Dkts. 97 and
98. As Mr. Reimer had indicated to Mr. Rifkin, two of the documents, letters from
Richard Wincor, Esquire, of Coudert Brothers to David K. Sengstack, President of
Summy-Birchard Company (“Summy-Birchard”), Warner/Chappell’s predecessor-ininterest (collectively, the “Coudert Letters”), discussed in detail the Defendants’
predecessors’ disputed ownership of the song. Rifkin Decl. at 3-4, ¶¶ 14-16. As
required under Federal Rule of Civil Procedure 26(b)(5)(B), copies of the Coudert
Letters are attached to the Rifkin Declaration as Exhibits B and C are filed
concurrently under seal for a determination of Defendants’ claim of privilege.3 See
Fed. R. Civ. P. 26(b)(5)(B) (“After being notified, a party . . . may promptly present
the information to the court under seal for a determination of the claim.”) Because
this Motion discusses the Coudert Letters in detail, Plaintiffs also have sought
permission to file an unredacted version of this Motion under seal. See n.1, supra.

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See n.1, supra.

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

2 Rifkin and Randall S. Newman, Esquire, one of Plaintiffs’ co-counsel, spoke by
3 telephone with Mr. Reimer to ask ASCAP to withdraw the “Confidential”
4 designation for the Coudert Letters.

Rifkin Decl. at 3, ¶ 13.

After a short

5 conversation, Mr. Reimer said he would need to speak with the Defendants before
6 agreeing to the request, but that he did not oppose withdrawing the “Confidential”
7 designation for the Coudert Letters. Rifkin Decl. at 3-4, ¶¶ 14- 15.
8

Six days after that, Mr. Reimer advised Mr. Rifkin that Defendants claimed

9 certain of the documents produced by ASCAP (the “ASCAP Documents”) were
10 privileged and that “counsel for the defendants” would be contacting Mr. Rifkin
11 directly “to provide the details as to the basis for their clients’ claim of privilege.”
12 Id. at 6, ¶ 24 (emphasis added). Despite Defendants’ belated claim of privilege –
13 made through ASCAP – none of the ASCAP Documents appeared on the privilege
14 log produced by Defendants on May 9, 2014, or on Defendants’ amended privilege
15 logs produced on June 2, 2014 and June 23, 2014. Manifold Decl., Ex. 7. As of July
16 30, 2014, Defendants have not served a further amended privilege log to include any
17 of the ASCAP Documents. See id., ¶ 25; Manifold Decl. at 2, ¶ 11.
18

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

19 correspondence and participated in a series of telephone calls with Defendants’
20 counsel regarding their belated claim of privilege. Rifkin Decl. at 6, ¶ 27. The
21 parties vigorously dispute whether any of the ASCAP Documents, the Coudert
22 Letters in particular, are privileged, in light of the fact that the ASCAP Documents
23 were in the hands of a third-party (ASCAP) with whom Defendants share no
24 common legal interest, and under circumstances plainly indicating that Defendants’
25 purported privilege in the ASCAP Documents, if any, has been waived. Whether the
26 ASCAP Documents are privileged depends, among other things, upon the nature of
27 the relationship between ASCAP and Summy-Birchard Co. (the Defendants’
28 predecessor-in-interest), their respective interests (if any) in the Song’s copyright,
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Ex. 1
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1 their understanding (if any) regarding the documents, the reason(s) why the
2 documents were created, the reason(s) why Summy-Birchard Co. sent the documents
3 to ASCAP, and the circumstances under which ASCAP produced the ASCAP
4 Documents to Plaintiffs.4
5

On May 27, 2014, Defendants opposed the Rule 30(b)(6) deposition notice

6 pursuant to Rule 30(b)(6) on various grounds. Manifold Decl., Ex. 6. Among other
7 objections, Defendants refused to “produce a witness to testify about any information
8 protected by the attorney-client privilege, the attorney work product, or any other
9 privilege or protection from disclosure.”

Id.

Defendants also objected to the

10 deposition that it is purportedly “beyond the scope of discovery contemplated by the
11 Federal Rules of Civil Procedure and/or by the Court’s Order regarding the scope of
12 discovery in the first phase of this matter.” Id. Finally, Defendants objected to the
13 deposition on the basis that it purportedly “not permitted by Rule 26(b)(5)(B).” See
14 id.
15

Plaintiffs also subpoenaed ASCAP under Rules 45 and 30(b)(6) for the

16 deposition of a representative of ASCAP most knowledgeable about the scope or
17 validity of any copyright to the Song, disputes regarding the scope and validity of any
18 copyright to the Song, the distribution of fees or royalties from the Song, the nature
19 of the relationship between ASCAP and Summy-Birchard Co., the services provided
20 by ASCAP to Summy-Birchard Co., and the circumstances surrounding ASCAP’s
21 production of the Documents to Plaintiffs pursuant to the document subpoena.
22 ASCAP first moved to quash the subpoena, but the parties resolved that dispute and
23 ASCAP withdrew its motion to quash. See Manifold Decl., Ex. 8 (Motion), Ex. 9
24 (Reimer Declaration), and Ex. 10 (Letter withdrawing Motion). ASCAP’s deposition
25 will take place in New York on July 11, 2014. Id. at 3, ¶ 13.
26
4

Recently, ASCAP admitted in a filing in the Southern District of New York that Mr.
28 Reimer knowingly and intentionally produced the ASCAP Documents to Plaintiffs. See
Manifold Decl., Ex. 11 (attaching ASCAP’s Reply Memo. Mot. Quash).

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Ex. 1
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A.

Defendants’ Privilege Claims in the ASCAP Documents Are Wholly
Unsupported

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Under Rule 26(b)(5)(B), a party producing discovery may notify the receiving

4 party that the discovery is subject to a claim of privilege. After Plaintiffs asked
5 ASCAP to withdraw the “Confidential” designation from the ASCAP Documents,
6 ASCAP notified Plaintiffs that Defendants – not ASCAP – claimed a privilege in the
7 documents. As a result, Plaintiffs were required by Rule 26(b)(5)(B) to “return,
8 sequester, or destroy the specified information and any copies it has” and “must not
9 use or disclose the information until the claim is resolved.”

Fed. R. Civ. P.

10 26(b)(5)(B). Plaintiffs sequestered the ASCAP Documents to comply with Rule
11 26(b)(5)(B), and promptly notified both ASCAP and Defendants that they had done
12 so.
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20
21
22
23
24
25
26
27
28

Defendants Waived Any Privilege in the ASCAP
Documents by Voluntarily Sharing Them With ASCAP

As a general matter, the attorney-client privilege is not absolute or permanent.
It may be waived by the client at any time. Significantly, the burden of proving that
the attorney-client privilege applies is on the party asserting it. The party asserting
the attorney-client privilege must “prove that it has not waived the privilege” to carry
its burden. Weil v. Investment/Indicators, Research & Mgmt., Inc., 647 F.2d 18, 25
(9th Cir. 1981) (citing U.S. v. Landof, 591 F.2d 36, 38 (9th Cir. 1978) (quotation
omitted)).
There is an express waiver of the attorney-client privilege “when a party
discloses privileged information to a third party who is not bound by the privilege, or
otherwise shows disregard for the privilege by making the information public.”
Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003) (citations omitted).
That is exactly what happened here: Defendants (or their successors-ininterest) expressly waived any privilege they may have had in the ASCAP
Documents.
- 11 -

Ex. 1
23

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

Simply stated, Summy-Birchard expressly waived any privilege it may have

19 had in the Coudert Letters when Ms. Sengstack gratuitously sent courtesy copies of
20 them to Mr. Korman in 1979.
21
22
23
24
25
26
27
28

2.

Defendants and ASCAP Do Not Share Any Common
Interest That Would Preserve Any Privilege Defendants
Had in the ASCAP Documents

During the meet-and-confer process, Defendants asserted that any privilege
they had was not waived because they (or their predecessors-in-interest) share a
“common interest” with ASCAP.
“The common interest privilege, or joint defense privilege, is an extension of
the attorney client privilege.” In re Fresh & Process Potatoes Antitrust Litig., No.
- 12 -

Ex. 1
24

1 10-md-2186, 2014 U.S. Dist. LEXIS 74936, at *28-29 (D. Idaho May 30, 2014)
2 (“Potatoes Antitrust Litig.”) (citing U.S. v. Gonzalez, 669 F.3d 974, 978 (9th Cir.
3 2012) (“Gonzalez”)) . The common interest privilege allows “persons who share a
4 common interest in litigation [to] be able to communicate with their respective
5 attorneys and with each other to more effectively prosecute or defend their claims.”
6 In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990). Although the
7 privilege is not limited to situations in which litigation has commenced, there must at
8 least be some common legal effort in furtherance of anticipated litigation for the
9 privilege to apply. See Potatoes Antitrust Litig., supra, at *29; In re Grand Jury
10 Subpoenas, 902 F.2d at 249; U.S. v. Schwimmer, 892 F.2d 237, 244 (2nd Cir. 1989);
11 Gonzalez, 669 F.3d at 980; MGA Entm’t, LLC v. Nat’l Prods. LTD., No. 10-07083,
12 2012 U.S. Dist. LEXIS 108408, at *15 (C.D. Cal. Aug. 2, 2012) (citing Metro
13 Wastewater Reclamation v. Continental Cas., 142 F.R.D. 471, 476 (D. Colo. 1992))
14 (same); Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007)
15 (same).
16

Even when a common legal interest is established, the doctrine only protects

17 communications made in furtherance of that shared legal interest. See, e.g., FSP
18 Stallion 1, LLC v. Luce, No. 08-01155, 2010 U.S. Dist. LEXIS 110617, at *59 (“the
19 common legal interest exception requires that the communication at issue be
20 designed to further that legal effort.” (citing Nidec, 249 F.R.D. at 579); MGA Entm’t,
21 2012 U.S. Dist. LEXIS 108408, at *15 (citing Metro Wastewater Reclamation, at
22 476).
23

This narrow extension of the attorney-client privilege was extremely well

24 summarized in a very recent decision in Potatoes Antitrust Litig., supra. Relying
25 upon 9th Circuit and Northern District of California precedent, the Honorable Candy
26 W. Dale explained the common interest privilege in a thorough and well-reasoned
27 decision:
28
- 13 -

Ex. 1
25

1

The common interest privilege, or joint defense privilege, is an

2

extension of the attorney client privilege. U.S. v. Gonzalez, 669

3

F.3d 974, 978 (9th Cir. 2012). The privilege applies if “(1) the

4

communication is made by separate parties in the course of a matter

5

of common [legal] interest; (2) the communication is designed to

6

further that effort; and (3) the privilege has not been waived.”

7

Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D.Cal.

8

2007).

9
10

The rationale for the rule is to allow “persons who share a common

11

interest in litigation [to] be able to communicate with their

12

respective attorneys and with each other to more effectively

13

prosecute or defend their claims.” In re Grand Jury Subpoenas, 902

14

F.2d 244, 249 (4th Cir. 1990). Although the privilege is not limited

15

to situations in which litigation has commenced or is in progress,

16

there must be some common legal effort in furtherance of

17

anticipated litigation. In re Grand Jury Subpoenas, 902 F.2d at

18

249; U.S. v. Schwimmer, 892 F.2d 237 244 (2nd Cir. 1989);

19

Gonzalez, 669 F.3d at 980; Nidec Corp. v. Victor Co. of Japan, 249

20

F.R.D. 575, 578 (N.D.Cal. 2007).

21
22

But the doctrine does not extend the privilege to communications

23

about a joint business strategy that happens to include a concern

24

about litigation. FSP Stallion 1, LLC v. Luce, 2010 U.S. Dist.

25

LEXIS 110617, 2010 WL 3895914 *18 (D. Nev. Sept. 30, 2010).

26

In practice, the parties must demonstrate cooperation in

27

formulating a common legal strategy. Id. And, even if the parties

28

do share a common legal interest, for the privilege to apply, the
- 14 -

Ex. 1
26

1

communication at issue must be designed to further that legal

2

effort. Id. “The fact that the parties may have been developing a

3

business deal that included a desire to avoid litigation ‘does not

4

transform their interest and enterprise into a legal, as opposed to a

5

commercial matter.’” Id. (quoting Bank of Am. v. Terra Nova Ins.

6

Co., LLT, 211 F.Supp.2d 493, 497 (S.D.N.Y. 2002).

7 Potatoes Antitrust Litig., 2014 U.S. Dist. LEXIS 74936, at *28-30 (emphases added).
8

Two important points emerge from Judge Dale’s excellent summary of the

9 common interest privilege. First, the privilege is highly fact-dependent. These facts
10 include not just the nature of the communication in question, but also the nature of
11 the relationship between the parties sharing the communication, their respective
12 interests in the subject-matter of the communication, the purpose of the
13 communication, and the context in which the communication was shared.
14

Second, the privilege is very narrow. It applies only to communications made

15 in the course of a matter of common legal – as opposed to business – interest. While
16 that legal interest need not be actual litigation, some litigation must at least be
17 anticipated. If that condition is met, the privilege protects only a communication that
18 is designed to further that effort. Thus, for the privilege to apply there must be (i) a
19 common legal effort; (ii) actual or anticipated litigation; and (iii) a communication in
20 furtherance of that common legal effort. For the reasons that follow, none of those
21 three requirements is met here.
22

Warner/Chappell also argues that the ASCAP Documents, and the Coudert

23 Letters in particular, remained privileged even after they were sent voluntarily to a
24 third-party, ASCAP, under the common interest privilege because ASCAP was its
25 putative “agent” for the purpose of collecting royalties on the song Happy Birthday to
26 You. However, according to a declaration from ASCAP’s Senior Vice President of
27 Legal Services, Richard H. Reimer, Esquire, submitted in support of ASCAP’s
28 motion to quash the deposition subpoena served upon it, “ASCAP is a voluntary
- 15 -

Ex. 1
27

1 membership association that represents more than 500,000 composers, songwriters,
2 lyricists and music publishers, and licenses on a non-exclusive basis the public
3 performance rights in the musical works owned or administered by its members.”
4 Manifold Decl., Ex. 9 (attaching Declaration of Richard H. Reimer) (hereafter
5 referred to as the “Reimer Decl.”)) at 3, ¶ 5. Warner/Chappell is but one of those
6 500,000 members – many of whom have no interest (or even a competing interest) in
7 the song Happy Birthday to You – and the Song itself is one of millions for which
8 ASCAP collects royalties.
9

Most importantly, ASCAP has denied sharing any common interest with

10 Warner/Chappell in the Song or in any royalties derived from it. As Mr. Reimer has
11 stated, “ASCAP does not have any ownership interest in any of the musical works it
12 licenses on behalf of its members” and it does not “have any interest in the fees or
13 royalties it collects on behalf of its members.” Reimer Decl., ¶ 5. In light of these
14 undisputed – and indisputable – facts, it is all but impossible to imagine that ASCAP
15 shares any common legal interest with Warner/Chappell in the song Happy Birthday
16 to You.
17

Leaving apart the fact that Warner/Chappell’s argument misconstrues its

18 limited, non-exclusive relationship with ASCAP, Warner/Chappell’s agency
19 argument was rejected in Potatoes Antitrust Litig., and it should be rejected here for
20 the exact same reasons. In Potatoes Antitrust Litig., the defendants argued that
21 Potandon was a “marketing agent in common” under the Capper-Volstead Act, which
22 regulated how its relationship with the potato growers could be structured. Potandon
23 argued there was no waiver of the privilege when it shared communications
24 containing legal advice purportedly concerning “the parties’ common legal interest in
25 structuring their entities and business relationships to comply” with the statute.
26

Judge Dale disagreed, holding the “mere fact that the parties were working

27 together to achieve a common commercial goal cannot by itself result in an identity
28 of interest between the parties.” 2014 U.S. Dist. LEXIS 73964, at *31 (quoting
- 16 -

Ex. 1
28

1 Terra Nova, 211 F. Supp. 2d at 497) (emphasis added).

Judge Dale further

2 explained: “There is no evidence of any concern regarding pending or threatened
3 litigation raised during the time period of these communications. Even if there was a
4 general consensus to avoid litigation by maintaining compliance with Capper5 Volstead, “a business strategy which happens to include a concern about litigation is
6 not a ground for invoking the common interest rule.” Id. at *31-32 (quoting In re
7 FTC, No. M18-304, 2001 U.S. Dist. LEXIS 5059, at *13 (S.D.N.Y. Apr. 19, 2001)).
8

Judge Dale’s decision rejecting the common interest privilege applies with

9 even greater force to the facts of this this case. Here, as in Potatoes Antitrust Litig.,
10 Warner/Chappell argues that ASCAP was its agent for the purpose of collecting
11 royalties for the Song and that the two companies shared a common interest in the
12 Song or its copyright. Arguably, Potandon shared at least some interest with the
13 potato growers to comply with the Act, which Judge Dale found was not a sufficient
14 shared legal interest to warrant protection under the common interest privilege. Here,
15 Warner/Chappell and ASCAP do not share any interest, as ASCAP has denied having
16 any interest in the Song, the copyright, or any royalties derived from it.
17

As Mr. Reimer’s declaration states, ASCAP had no legal interest in the Song,

18 and there is no evidence in the record that it had any responsibility for protecting any
19 interest Summy-Birchard had in the Song. See Reimer Decl. At most, Summy20 Birchard and ASCAP shared a commercial interest in the Song, not a legal interest in
21 it. But even that shared common interest is unlikely, given that ASCAP also had no
22 interest in the royalties collected on the song. Even if Summy-Birchard and ASCAP
23 had shared a commercial interest, that commercial interest would be insufficient to
24 invoke protection under the common interest privilege.

“The common-interest

25 privilege saves an otherwise privileged communication from waiver only where the
26 communication is shared with the third-party in order to further a matter of common
27 legal interest. It does not protect communications made in furtherance only of a
28
- 17 -

Ex. 1
29

1 common business interest.” Lenz v. Universal Music Corp., 07-3783, 2009 U.S.
2 Dist. LEXIS 105180, at *4 (N.D. Cal. Oct. 29, 2009) (internal citations omitted).
3

In rejecting the common interest privilege, Judge Dale distinguished Hewlett-

4 Packard Co. v. Baush & Lomb, Inc., 115 F.R.D. 308, 309-312 (N.D. Cal. 1987),
5 where the issue was whether Bausch & Lomb waived the attorney-client privilege
6 when it voluntarily disclosed its attorney’s opinion letter to a non-party with whom it
7 was negotiating the sale of a business. The letter in question in that case “involved
8 the threat of impending litigation if the third party entered into the business deal,” in
9 which case both the purchaser and the seller “would end up defending the same
10 patent in one lawsuit that plaintiff could be expected to bring” against both parties.
11 Id. at 310. It seemed “quite likely” to the Court that both parties would be sued by
12 the same plaintiff, in which case both parties “would be identically aligned, fighting
13 to protect interests distinguished only the time frame in which the marketing took
14 place.”

Id.

Thus, as the Northern District of California found, “the threat of

15 litigation rose to a level greater than a mere desire to avoid the remote possibility of
16 litigation – both parties ‘anticipated litigation in which they would have a common
17 interest.’” Id.
18

The parties in Hewlett-Packard undoubtedly shared a common legal interest in

19 the patent defense. A similar legal interest was shared in this case, for example,
20 between Summy-Birchard and its successor, Warner/Chappell. If Summy-Birchard
21 had sent a copy of the Coudert Letters to Warner/Chappell while they were
22 negotiating the sale of the business in 1988, the analysis in Hewlett-Packard would
23 apply to protect the privilege in that communication. However, the Hewlett-Packard
24 decision has no bearing on Summy-Birchard’s voluntary disclosure of the Coudert
25 Letters to ASCAP in 1979, with whom it was not negotiating the sale of any business
26 and, more importantly, who would never be aligned with it in one lawsuit fighting to
27 protect the same copyright ownership interest in the Song.
28
- 18 -

Ex. 1
30

1

In In re Regents of the Univ. of Cal., 101 F.3d 1386, 1389 (Fed. Cir. 1996), the

2 Federal Circuit held that the common interest privilege applies when “the same
3 attorney represents the interests of two or more entities on the same matter.” In that
4 case, the University of California and Eli Lilly and Co. worked together to develop
5 patents for the production of human growth hormone.

The technology was

6 developed by the University of California and was optioned by Lilly, which gave
7 them “a common legal interest in gaining sound patent rights to this technology.” Id.
8 at 1389-90. In addition, Lilly’s lawyers “advised and consulted frequently with UC
9 counsel on matters relating to UC’s patents.”

Id. at 1390.

Under those

10 circumstances, the Federal Circuit concluded that the common interest privilege
11 protected communications between Lilly, the University of California, and Lilly’s
12 lawyers concerning the parties’ common legal interest in the patents.
13

The facts here could not be more different than in Regents. Here, ASCAP

14 claims no interest in the underlying music and in royalties earned from the music.
15 Thus, ASCAP shared no common legal interest in the Song with Summy-Birchard
16 when the Coudert Letters were written and it has no common legal interest with
17 Warner/Chappell today. The record does not indicate that Coudert communicated
18 with ASCAP at any time, or even was aware of ASCAP or had any knowledge that
19 the Coudert Letters would be shared with ASCAP at any time, nor is there any
20 indication that it had any expectation that a subsequent communication would be
21 privileged. Likewise, there is no indication that ASCAP knew of the work done by
22 Coudert until Ms. Sengstack gratuitously send courtesy copies of Mr. Wincor’s
23 letters to Mr. Korman three years later. Plainly, ASCAP – which knowingly and
24 intentionally produced the ASCAP Documents to Plaintiffs and claims no privilege in
25 them – did not regard the Coudert Letters as privileged when it received them in 1979
26 and still does not regard them as privileged.
27

In Schwimmer, supra, 892 F.2d at 237, the Second Circuit considered whether

28 information that Schwimmer provided to an accountant hired by the lawyer
- 19 -

Ex. 1
31

1 representing Schwimmer’s co-defendant in a joint defense was privileged.

The

2 Second Circuit explained that the “common interest rule . . . protect[s] the
3 confidentiality of communications passing from one party to the attorney for another
4 party where a joint defense effort or strategy has been decided upon and undertaken
5 by the parties and their respective counsel.” Id. at 243 (citing U.S. v. Bay State
6 Ambulance and Hosp. Rental Serv., 874 F.2d 20, 28 (1st Cir. 1989)). The Second
7 Circuit found that the information Schwimmer provided to the accountant was
8 privileged because the accountant was hired by the co-defendant’s lawyer on behalf
9 of both defendants, with an express understanding that any information provided to
10 the accountant to aid the joint defense would remain privileged. Id. at 244.
11

Again, the facts here could not be more different. First, the Coudert Letters

12 did not pass from one party to the attorney for the other party; rather, one party
13 (Summy-Birchard) voluntarily sent a letter from its lawyer to another party
14 (ASCAP). Second, there is no evidence of any joint defense effort or strategy in
15 place at any time: either when the Coudert Letters were written or when Summy16 Birchard voluntarily sent them to ASCAP three years later. And third, there is no
17 evidence of any agreement or understanding that the Coudert Letters would remain
18 confidential. As discussed above, ASCAP did not regard them as privileged when
19 they were received and it does not regard them as privileged now.
20

Finally, the decision in Major League Baseball Props. v. Salvino, Inc., No. 00-

21 2805, 2003 U.S. Dist. LEXIS 14390 (S.D.N.Y. Aug. 20, 2003), does not support
22 Defendants’ argument that the Coudert Letters are privileged. In a short decision, the
23 Southern District of New York found that information provided by the major league
24 baseball clubs to in-house counsel for an entity they created to register and enforce
25 their intellectual property rights was protected under the common interest privilege.
26 Id. at *2. After recognizing that the privilege requires the parties to share a common
27 legal interest in the matter, the court found the requirements of the privilege were
28
- 20 -

Ex. 1
32

1 met.5 Here, the relationship between Defendants and ASCAP is far more limited.
2 Defendants have no ownership or legal interests in ASCAP, it is not Defendants’
3 exclusive agent for licensing the Song, ASCAP has no legal interest in the Song or in
4 any royalties it collects from the Song, and it provides no service to Defendants other
5 than distributing shares of the blank license fees it collects. Moreover, Summy6 Birchard did not provide any information to ASCAP’s counsel to further a shared
7 legal interest, which the court in MLB Props. found was also a necessary condition
8 for the common interest privilege to apply. Id. Thus, MPB Props. does not support
9 applying the common interest privilege in this case.
10

B.

11

Purpose of Conducting Another Rule 30(b)(6) Deposition

12

1.

13

16
17
18

Plaintiffs Should Be Given Leave to Conduct a Rule
30(b)(6) Deposition on the Privilege Issues

14
15

The Discovery Cutoff Date Should Be Extended for the Limited

The issue of common interest is a fact specific analysis which looks at the
“identity of interests” in the context asserted. For example, the identity of ASCAP’s
licensing interests with regard to music publishers, such as Warner/Chappell Music,
was recently discussed in In Re Petition of Pandora Media, Inc., Case No. 12 Civ
8036 (S.D.N.Y.) related to U.S. v. American Society of Composers, Authors and

19
20
21
22
23
24
25
26
27
28

5

According to a later summary judgment opinion in this same case, the entities at
issue all shared a common legal interest as follows: “MLBP is a wholly owned subsidiary of
Major League Baseball Enterprises, Inc. (“MLBE”), an entity in which each of the current
30 MLB clubs (the “Clubs”) owns an equal interest. MLBP is, with limited exceptions, the
exclusive worldwide agent for licensing the use of all names, logos, trademarks, service
marks, trade dress, and other intellectual property owned or controlled by the MLB
Clubs, MLB’s Office of the Commissioner (“BOC”) and the MLBP (collectively “MLB
Intellectual Property”), on retail products. MLBP also acts as agent for the Clubs with
respect to, inter alia, trademark protection, quality control, design services, royalty
accounting and auditing.” Major League Baseball Props., 542 F.3d 390, 294 (2nd Cir.
2008).

- 21 -

Ex. 1
33

1 Publishers, Case No. 41 Civ. 1395 (S.D.N.Y.) (“Pandora Antitrust Litigation”).6
2 Universal Music Publishing, Inc. (“Universal”), a music publisher, sought to
3 intervene, among others, in Pandora’s motion for summary judgment to define its
4 licensing rights under the antitrust consent decree with ASCAP. Universal argued
5 that ASCAP and the music publisher has “some interests in common,” but as to the
6 publisher’s right to assert the validity of certain licenses, Universal and ASCAP do
7 not share an “an identity of interest.” Pandora Antitrust Litigation, Dkt. 105, at 5 of
8 12 (“Universal and ASCAP have some interests in common, but the issues
9 underlying this Motion and the Order – the extent to which Universal may withdraw
10 certain rights from ASCAP in order to exclusively license to digital services – are not
11 issues as to which ASCAP and Universal share “identity of interest[s]” or the “same
12 ultimate objective” and that “ASCAP and Universal do not share “identity of
13 interest[s]” in upholding the validity of the withdrawal of some but not all of
14 Universal’s rights from ASCAP.”)
15

Plaintiffs believe the present record should be sufficient for the Court to

16 overrule Defendants’ claim of privilege in the ASCAP Documents. However, should
17 the Court deem it necessary to have a more fully-developed factual record to
18
19
6

20
21
22
23
24
25
26
27
28

In the Pandora Antitrust Litigation, Pandora Media, Inc. (“Pandora”), a provider of
internet radio, sought a blanket, through to the audience, license from the American Society
of Composers, Authors & Publishers (“ASCAP”) for a five year period beginning January
1, 2011 and obtained an antitrust consent decree under which ASCAP operates. The
antitrust consent decree requires ASCAP to license Pandora to perform for five years all of
the works in the ASCAP repertory as of January 1, 2011, even though certain music
publishers beginning in January 2013 have purported to withdraw from ASCAP the right to
license their compositions to “New Media” services such as Pandora. Based on the
language of the consent decree, the Court granted Pandora’s summary judgment motion
with regard to the “withdrawing” publishers in its repertory even if it purports to lack the
right to license them to a subclass of New Media entities. Order re Mot. Summ. J., Pandora
Antitrust Litig.

- 22 -

Ex. 1
34

1 determine whether Defendants have any privilege in the documents, then Plaintiffs
2 should be granted leave to take the deposition of the representative of Defendants
3 most knowledgeable on factual questions surrounding the privilege. These questions
4 include the nature of the relationship between Summy-Birchard and ASCAP, what
5 interest (if any) Summy-Birchard and ASCAP shared in the Song or its copyright
6 (i.e., the subject-matter of the communications), what understanding (if any) Summy7 Birchard and ASCAP had regarding whether the communications would be
8 privileged, what steps Summy-Birchard took to maintain the confidentiality of the
9 communications, whether Summy-Birchard shared those communications with any
10 other third-parties, when Defendants learned that ASCAP intended to provide the
11 documents to Plaintiffs, and what steps (if any) Defendants took to preserve any
12 privilege they claim in the ASCAP Documents.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

2.

The Fact Discovery Cut-Off Should be Extended to Allow
Time for the Second Rule 30(b)(6) Deposition

Federal Rule of Civil Procedure 16(b) provides that a scheduling order may be
modified upon a showing of “good cause,” which focuses on the reasonable diligence
of the moving party. Noyes v. Kelly Servs., 488 F.3d 1163, 1174 (9th Cir. 2007)
(citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).
Here, Plaintiffs have been reasonably diligent in seeking the second Rule 30(b)(6)
deposition, and good cause exists for extending the fact discovery cut-off.
Specifically, Plaintiffs noticed the second Rule 30(b)(6) deposition to take
place prior to the fact discovery cut-off and were willing to take the deposition on
any date prior to the deadline.

Plaintiffs met and conferred with Defendants

regarding the deposition to address their concerns so that the appropriate designee
could be deposed before the discovery cut-off. Defendants refused to designate a
witness to testify on any topic or in response to the Rule 30(b)(6) notice. Once
Plaintiffs learned that Defendants unilaterally refused to designate a witness for

28
- 23 -

Ex. 1
35

1 deposition on the privilege claim, Plaintiffs began the Local Rule 37-2 process to
2 bring this dispute before the Court as soon as possible.
3

Plaintiffs have not delayed seeking the resolution of the complex discovery

4 disputes presented in this motion. Therefore, they have satisfied their burden to show
5 good cause under Rule 16(b) for extending the fact discovery cut-off.
6

II.

DEFEDANTS’ POSITION

7
8
9

IT IS SO STIPULATED.

10
11
12 Dated: July __, 2014
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
By:

BETSTY C. MANIFOLD
FRANCIS M. GREGOREK
[e-mail]
BETSY C. MANIFOLD
[e-mail]
RACHELE R. RICKERT
[e-mail]
MARISA C. LIVESAY
[e-mail]
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599
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]
- 24 -

Ex. 1
36

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Facsimile:

212-545-4753

Interim Lead Counsel for Plaintiffs
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]
301 North Lake Avenue, 7th Floor
Pasadena, CA 91101
Telephone: [phone]
Facsimile: 626/796-0107
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
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
Attorneys for Plaintiffs

28
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Ex. 1
37

1
2

MUNGER TOLLES & OLSON LLP

Dated: July __, 2014
By:

3

KELLY M. KLAUS

4

Attorneys for Defendants Warner/Chappell
Music Inc. and Summy-Birchard, Inc.

5
6
7
8
9
10

WARNERCHAPPELL:20966.MOTION

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 26 -

Ex. 1
38