Rupa Marya v. Warner Chappell Music Inc

Filing 118

OPPOSITION to EX PARTE APPLICATION for Leave to Have Plaintiffs' Motion to Compel Heard After the Discovery Cutoff Date 116 /DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION filed by Defendants Summy-Birchard Inc, Warner Chappell Music Inc. (Attachments: # 1 Declaration DECLARATION OF KELLY M. KLAUS IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION, # 2 Proposed Order [PROPOSED] ORDER DENYING PLAINTIFFS EX PARTE APPLICATION)(Klaus, Kelly)

1 GLENN D. POMERANTZ (State Bar No. 112503)
[e-mail]
2 KELLY M. KLAUS (State Bar No. 161091)
[e-mail]
3 MELINDA E. LeMOINE (State Bar No. 235670)
[e-mail]
4 ADAM I. KAPLAN (State Bar No. 268182)
[e-mail]
5 MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
6 Thirty-Fifth Floor
Los Angeles, California 90071-1560
7 Telephone: [phone]
Facsimile: [phone]
8
Attorneys for Defendants
9 Warner/Chappell Music, Inc. and
Summy-Birchard, Inc.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

13
14 GOOD MORNING TO YOU
PRODUCTIONS CORP.; et al.,
15
Plaintiffs,
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v.
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WARNER/CHAPPELL MUSIC, INC.,
18 et al.,
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21
22

Defendants.

Lead Case No. CV 13-04460-GHK
(MRWx)
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ EX PARTE
APPLICATION
Judge:
Room:

Hon. Michael R. Wilner
H-9th Floor

Fact Disc. Completion:
Expert Reports:
Rebuttal Expert Reports:
L/D File Jt. MSJ:
Pretrial Conference:
Trial:

July 11, 2014
July 25, 2014
Aug. 25, 2014
Nov. 14, 2014
N/A
N/A

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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1

Plaintiffs’ ex parte application asks the Court to extend the discovery cut-off

2 date again so that Plaintiffs may present a discovery dispute regarding the
3 application of privilege to the Court. Specifically, Plaintiffs challenge
4 Warner/Chappell’s claim of privilege over legal memoranda analyzing copyright
5 issues regarding “Happy Birthday to You.” The memoranda were drafted by legal
6 counsel at Coudert Brothers, at the time counsel to Warner/Chappell’s predecessor7 in-interest (the “Coudert Memos”). The Coudert Memos were produced to Plaintiffs
8 in this case by ASCAP, to whom Plaintiffs had issued a subpoena. ASCAP was,
9 and to this day is, responsible for administering Warner/Chappell’s (and its
10 predecessors’) exclusive right of public performance in “Happy Birthday to You”
11 and many other songs. ASCAP produced the Coudert Memos without
12 Warner/Chappell’s (the privilege holder’s) knowledge or consent.
13

Upon learning of ASCAP’s production, Warner/Chappell on May 22 notified

14 Plaintiffs of the privilege claim, and requested clawback of the document pursuant
15 to Rule 26(b)(5)(B) and Paragraph 11 of the Protective Order. Dkt. No. 97.
16 Plaintiffs’ counsel stated that he would “sequester” the document pending judicial
17 resolution of the question whether ASCAP’s possession and production of the
18 Coudert Memos waived privilege. Plaintiffs, however, tactically delayed bringing
19 the motion until now—just days before a fact discovery cut-off the Court already
20 extended once—allegedly so Plaintiffs could develop facts for the privilege-contest
21 motion.
22

To obtain the requested ex parte relief, Plaintiffs must demonstrate that they

23 are “without fault in creating the crisis that requires ex parte relief, or that the crisis
24 occurred as a result of excusable neglect.” Mission Power Eng'g Co. v. Cont'l Cas.
25 Co., 883 F. Supp. 488, 492 (C.D. Cal.1995). Here, Plaintiffs cannot meet either of
26 these requirements. Plaintiffs’ application acknowledges that Plaintiffs have been
27 aware since late May that Warner/Chappell claimed privilege over the Coudert
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 Memos and that it would not consent to a discovery expedition into the underlying
2 privilege claim.
3

Nothing prevented Plaintiffs from raising their claims earlier, when they

4 could have been timely resolved without need for ex parte relief. In fact, as the
5 Court is aware, since this dispute arose in May, Plaintiffs filed a motion challenging
6 other Warner/Chappell privilege claims and presenting issues strikingly similar to
7 the issues presented by the Coudert Memos. But Plaintiffs never raised the Coudert
8 Memos as a part of that motion, which they eventually withdrew. Instead, Plaintiffs
9 sought depositions as to the Coudert Memos to develop facts that they thought
10 would bolster their privilege challenge. Federal Rule of Civil Procedure 26(b)(5)(B)
11 does not permit that kind of fact development with regard to a claim of privilege in
12 connection with a produced document. Plaintiffs not only had the opportunity to
13 raise the privilege issues their ex parte application seeks extra time to advance, they
14 took that opportunity—and consciously avoided raising the document as part of that
15 motion. This Court should not grant ex parte relief to afford additional time after
16 the discovery cut-off for Plaintiffs to advance a motion that they consciously
17 decided against raising earlier.
18

Plaintiffs cannot claim surprise at the consequences of failing to raise this

19 issue in time for it to be heard before the discovery cut-off. The District Court’s
20 Case Management Order makes clear that “[d]iscovery disputes of a significant
21 nature should be brought promptly before the Magistrate Judge. The court does not
22 look favorably upon delay resulting from unresolved discovery disputes,” and that
23 the Court “entertains ex parte applications only in extraordinary circumstances.”
24 Dkt. No. 14, ¶¶ 8-9 (emphasis added). It is well-established that “[e]x parte
25 applications are not intended to save the day for parties who have failed to present
26 requests when they should have, and should not be used as a way to ‘cut in line’
27 ahead of those litigants awaiting determination of their properly noticed and timely
28 filed motions.” In re Intermagnetics Am., Inc., 101 B.R. 191, 193 (C.D. Cal. 1989);
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 see also ESG Capital Partners LP v. Stratos, No. 2:13-cv-01639-ODW(SHx), 2014
2 WL 1830903, at *1 (C.D. Cal. May 8, 2014) (denying ex parte application seeking
3 additional time for discovery in part because Court’s Case Management Order made
4 clear the Court’s disfavor of such efforts). Because Plaintiffs chose to delay for
5 more than a month in bringing this discovery motion, the Court should deny their ex
6 parte application.
7

A.

Plaintiffs Unreasonably Delayed In Presenting This Dispute.

8

Plaintiffs had ample opportunity to raise this issue with the Court well in

9 advance of the fact discovery cut-off (already extended for Plaintiffs’ since10 withdrawn privilege motion) and well before the eve of a long holiday weekend.
11 Plaintiffs acknowledge that they knew as of May 22 that Warner/Chappell
12 maintained that the challenged documents that ASCAP had produced were subject
13 to Warner/Chappell’s attorney-client privilege. Manifold Decl. ¶¶ 12-13;
14 Declaration of Kelly M. Klaus (“Klaus Decl.”) ¶¶ 5-7. Plaintiffs also acknowledge
15 that they knew as of May 27 that Warner-Chappell would not provide the second
16 30(b)(6) deposition Plaintiffs sought, which was aimed exclusively at exploring
17 Warner/Chappell’s claim of privilege. Manifold Decl. ¶ 14. At that time, Plaintiffs
18 could have and should have presented the challenged documents to the Court
19 “promptly” (i.e., several weeks ago) as Federal Rule of Civil Procedure 26(b)(5)(B)
20 requires.
21

The delay since May 22 and 27 is according to the facts as Plaintiffs’

22 application presents them. Warner/Chappell contends that Plaintiffs should have
23 raised this issue with the Court even earlier. Plaintiffs’ counsel acknowledged that
24 he immediately understood the privilege issues presented by the May 9 production
25 of the Coudert Memos. By his own admission, he went to Warner/Chappell’s
26 privilege log upon reviewing these documents to see whether they had been logged
27 there. Klaus Decl. ¶ 6. But instead of advising Warner/Chappell immediately,
28 Plaintiffs’ counsel began efforts to use the document in the litigation.
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 Warner/Chappell only became aware of its production when Plaintiffs’ counsel
2 sought ASCAP’s permission to remove the confidentiality designation, and ASCAP
3 advised Warner/Chappell of the request. Id ¶¶ 2-3. On May 22, Warner/Chappell
4 advised Plaintiffs’ counsel that the document was subject to Warner/Chappell’s
5 attorney-client privilege and needed to be handled pursuant to Federal Rule of Civil
6 Procedure 26(b)(5)(B). Id. ¶ 5. That same day, after Warner/Chappell had
7 explained to Plaintiffs the basis for its privilege claim over the Coudert Memos,
8 Plaintiffs wrote Warner/Chappell that they disputed “any purported claim of
9 privilege” and would “investigate and bring the matter to the Court’s attention.” Id.
10 ¶ 7.
Nothing prevented Plaintiffs from presenting the document to the Court for

11

12 resolution of the privilege dispute on May 22, or even earlier once Plaintiffs saw the
13 obviously privileged Coudert Memos. In fact, as the Court will recall, Plaintiffs did
14 exactly that during the same time frame as to a very similar privilege challenge. On
15 May 27, Plaintiffs sent Warner/Chappell their portion of a motion to compel the
16 production of documents Warner/Chappell had withheld as privileged. Id. ¶ 8.
17 Among other things, this motion argued that Warner/Chappell had waived its
18 privilege over documents that had been shared with third-party performing rights
19 organizations. Dkt. No. 101-1. If Plaintiffs intended to challenge whether the
20 privilege applied to the Coudert Memos, Plaintiffs should have included their then21 pending dispute regarding the Coudert Memos. And they easily could have done so.
22 Plaintiffs’ motion raised the precise questions underlying Plaintiffs’ instant,
23 untimely challenge—i.e., whether Warner/Chappell waived privilege by sending
24 materials to performing rights organizations, such as ASCAP, that Warner/Chappell
25 claims were its agents and parties with whom it also shared common legal interests.1
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Dkt. No. 101-1 at 34 (“ASCAP and Warner Chappell do not share a common legal
interest in any copyright to the Song.”), id. at 34-35 (arguing that ASCAP was not
28 Warner/Chappell’s “privileged agent”).
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 But Plaintiffs’ motion did not mention the Coudert Memos—which Plaintiffs had
2 asserted were not privileged five days earlier when ASCAP and Warner/Chappell
3 provided Plaintiffs the requisite clawback notice. Id; Klaus Decl. ¶¶ 5, 7-8. Had
4 Plaintiffs included in the motion to compel their challenge regarding the Coudert
5 Memos, the Court would have had time to rule on the issue before the completion of
6 fact discovery, as required by the District Court’s March 24 Scheduling Order. Dkt.
7 No. 92.
8

The Court acted promptly in response to Plaintiffs’ motion, and contacted the

9 parties within days of the filing to give his initial views on Plaintiffs’ motion. Your
10 honor advised the parties to consider those initial views and continue informal
11 efforts to resolve the motion. Your honor made clear he would make himself
12 available for an additional conference as needed, and conferred with the District
13 Court to ensure that the parties would have adequate time to resolve the privilege
14 dispute before the then-looming discovery cut-off of June 27. Plaintiffs met and
15 conferred with Defendants as the Court had advised. At an in-person meeting on
16 June 16, Defendants’ counsel suggested that the parties work together to come up
17 with an efficient means of presenting any remaining discovery issues to the Court
18 (either by joint letter or otherwise). Instead, Plaintiffs elected to withdraw that
19 motion entirely on June 24. Plaintiffs cancelled a scheduled conference with the
20 Court that was set for June 27. Instead of raising the Coudert Memos at any point
21 during the course of that motion at these several opportunities, Plaintiffs now ask for
22 ex parte relief to afford them time to present nearly the identical issue regarding the
23 application of the common interest doctrine and agency principles for resolution.
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B.

Ex Parte Relief Is Unavailable Because Plaintiffs’ Delay Was
Deliberate And Tactical.

Plaintiffs try to excuse their delay on the ground that they sought depositions

27 “[t]o establish facts the Court may deem necessary to determine whether any of the
28 [challenged documents] are privileged.” Manifold Decl. ¶ 13; Ex Parte Appl. at 5-5-

DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 6. That admittedly tactical decision does not excuse Plaintiffs’ delay or justify the
2 relief they seek.
3

Over the last five weeks, Warner-Chappell advised Plaintiffs repeatedly that

4 the Federal Rules do not allow for discovery into the underlying claim of privilege
5 before presenting a dispute regarding a produced document “promptly” to the Court.
6 Fed. R. Civ. P. 26(b)(5)(B); Klaus Decl. ¶ 9. If the document is not submitted to the
7 Court, it must be returned, destroyed or sequestered—not serve as the basis for
8 further discovery. Plaintiffs say they sought discovery on May 22 and afterwards to
9 show that Warner/Chappell’s predecessor-in-interest had waived privileged over the
10 Coudert Memos by sending them to ASCAP, and that ASCAP waived privilege by
11 producing the Memos to Plaintiffs “knowingly and intentionally.” Ex Parte Appl. at
12 5-6. But Plaintiffs were required promptly to present their privilege contest-motion
13 to the Court regardless.
14

Federal Rule 26(b)(5)(B) “does not provide for the non-asserting party to

15 make the determination [regarding privilege] on its own. If it disputes the assertion
16 of the privilege and the erroneous disclosure, it can invoke the decision making
17 authority of the court, but cannot divine justice on its own.” Piasa Commercial
18 Interiors, Inc. v. J. P. Murray Co., No. 07-617-DRH, 2010 WL 1241563, at *2 (S.D.
19 Ill. March 23, 2010); see also Woodard v. Victory Records, Inc., No. 11 CV 7594,
20 2013 WL 4501455, at *2 (N.D. Ill. Aug. 22, 2013) (“[Rule 26(b)(5)(B)] does not,
21 however, address the question of whether the documents in dispute are in fact
22 privileged or whether the inadvertent disclosure amounted to a waiver of the
23 claimed privilege.”).
24

Moreover, as Warner/Chappell explained to Plaintiffs weeks ago and will

25 further detail in its substantive response to the Court to Plaintiffs’ motion, not only
26 is the requested discovery improper to develop facts to attack the privilege, it seeks
27 irrelevant information under settled law. Klaus Decl. ¶ 9. ASCAP could not waive
28 Warner/Chappell’s privilege, so whether the production was “knowing and
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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)

1 intentional” does not matter. United States v. Gonzalez, 669 F.3d 974, 982 (9th Cir.
2 2012). And, as Warner/Chappell has explained at length—including during the
3 meet-and-confer process the Court ordered on the first privilege motion: on-point
4 law demonstrates that the common interest doctrine applies and Warner/Chappell’s
5 predecessor-in-interest did not waive privilege. Major League Baseball Props., Inc.
6 v. Salvino, Inc., No. 00 CIV.2855 JCF, 2003 WL 21983801, at *1 (S.D.N.Y. Aug.
7 20, 2003) (common interest doctrine applied to communications between major
8 league baseball clubs and organization created to register and enforce the clubs’
9 intellectual property rights).
10

If the Court had been presented with this issue, the Court could have assessed

11 whether, in its view, additional “facts” were “necessary.” If so, the Court could
12 have conducted an evidentiary hearing in camera. See United States v. Gonzalez,
13 669 F.3d 974, 976-77, 981 (9th Cir. 2012). Nonetheless, Plaintiffs elected to delay
14 in raising this issue for precisely the purpose of attempting to conduct additional
15 fact-development in contravention to existing law. Having chosen to delay rather
16 than present the issue to the Court “promptly” for resolution, Plaintiffs must now
17 accept the consequences of that delay.
18
19 DATED: July 8, 2014

MUNGER, TOLLES & OLSON LLP

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By:

/s/ Kelly M. Klaus
KELLY M. KLAUS
Attorneys for Defendants Warner/Chappell
Music, Inc. and Summy-Birchard, Inc.

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DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION
CASE NO. CV 13-04460-GHK (MRWx)