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)

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1 GLENN D. POMERANTZ (State Bar No. 112503) 2 KELLY M. KLAUS (State Bar No. 161091) 3 MELINDA E. LeMOINE (State Bar No. 235670) 4 ADAM I. KAPLAN (State Bar No. 268182) 5 MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue 6 Thirty-Fifth Floor Los Angeles, California 90071-1560 7 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 8 Attorneys for Defendants 9 Warner/Chappell Music, Inc. and Summy-Birchard, Inc. 10 11 12 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 13 14 GOOD MORNING TO YOU PRODUCTIONS CORP.; et al., 15 Plaintiffs, 16 v. 17 WARNER/CHAPPELL MUSIC, INC., 18 et al., 19 20 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 23 24 25 26 27 28 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 28 -1- 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); -2- 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. -3- 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 26 1 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”). 27 -4- 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. 24 25 26 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 -6- 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 20 21 22 23 By: /s/ Kelly M. Klaus KELLY M. KLAUS Attorneys for Defendants Warner/Chappell Music, Inc. and Summy-Birchard, Inc. 24 25 26 27 28 -7- DEFS.’ OPPOSITION TO PLS.’ EX PARTE APPLICATION CASE NO. CV 13-04460-GHK (MRWx)

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