Rupa Marya v. Warner Chappell Music Inc

Filing 121

TRANSCRIPT for proceedings held on 7/9/14 10:08 a.m. phone number BABYKIN COURTHOUSE SERVICES. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Electronic Court Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Notice of Intent to Redact due within 7 days of this date. Redaction Request due 8/5/2014. Redacted Transcript Deadline set for 8/15/2014. Release of Transcript Restriction set for 10/13/2014. (ha)

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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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GOOD MORNING TO YOU
PRODUCTIONS, CORP.,

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PLAINTIFF,
V.

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WARNER CHAPPELL MUSIC, INC.,
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DEFENDANT.

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CV 13-4460-GHK(MRWX)
LOS ANGELES, CALIFORNIA
JULY 9, 2014
(10:08 A.M. TO 10:57 A.M.)

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TELEPHONIC CONFERENCE
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BEFORE THE HONORABLE MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

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APPEARANCES:

SEE NEXT PAGE

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COURT REPORTER:

RECORDED; COURT SMART

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COURTROOM DEPUTY:

VERONICA MC KAMIE

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TRANSCRIBER:

DOROTHY BABYKIN
COURTHOUSE SERVICES
1218 VALEBROOK PLACE
GLENDORA, CALIFORNIA
[phone]

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91740

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PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING;
TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

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APPEARANCES:
FOR THE PLAINTIFF:

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WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
BY: BETSY C. MANIFOLD
ATTORNEY AT LAW
750 B STREET
SUITE 2770
SAN DIEGO, CALIFORNIA 92101

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FOR THE DEFENDANT:

MUNGER TOLLES & OLSON LLP
BY: MELINDA E. LEMOINE
ADAM I. KAPLAN
ATTORNEYS AT LAW
355 SOUTH GRAND AVENUE
35TH FLOOR
LOS ANGELES, CALIFORNIA 90071

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I N D E X

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CV 13-4460-GHK(MRWX)

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PROCEEDINGS:

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TELEPHONIC CONFERENCE

JULY 9, 2014

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LOS ANGELES, CALIFORNIA; WEDNESDAY, JULY 9, 2014; 10:08 A.M.

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THE COURT:

ALL RIGHT.

GOOD MORNING, EVERYBODY.

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THIS IS JUDGE WILNER IN LOS ANGELES.

AND IT IS THE GOOD

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MORNING TO YOU CASE -- GOOD MORNING TO YOU VERSUS WARNER

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CHAPPELL MUSIC, CV 13-4460-GHK(MRWX).

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CAN I HAVE APPEARANCES FOR PLAINTIFF, PLEASE.

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MS. MANIFOLD:

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BETSY MANIFOLD, WOLF HALDENSTEIN, ON BEHALF OF THE

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GOOD MORNING, YOUR HONOR.

PLAINTIFFS.

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THE COURT:

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AND FOR THE DEFENSE.

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MS. LEMOINE:

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MELINDA LEMOINE AND ADAM KAPLAN FROM MUNGER TOLLES

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GOOD MORNING, YOUR HONOR.

AND OLSON ON BEHALF OF WARNER CHAPPELL.

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GOOD MORNING TO YOU.

THE COURT:

AND GOOD MORNING TO YOU.

THAT JOKE NEVER

GETS OLD.

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MS. LEMOINE:

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(LAUGHTER.)

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THE COURT:

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I'M NOT TIRED OF IT YET.

AGAIN, I HOPE I DON'T INFRINGE, BUT I

THINK I'VE GOT THE JUDICIAL PRIVILEGE ON THAT ONE.

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MS. LEMOINE:

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THE COURT:

YEP.
ALL RIGHT.

THE MATTER IS ON.

I WANTED

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TO GET YOU FOLKS ON FOR A DISCUSSION ABOUT THE APPLICATION TO

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TEE UP A DISCOVERY MOTION ON A PRIVILEGE CLAIM AFTER THE

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DISCOVERY CUT-OFF.

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I LOOKED AT PLAINTIFF'S PAPERS.

AND THEN I RECEIVED

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AN OPPOSITION FROM THE DEFENSE EARLIER THIS WEEK.

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I TOOK A

LOOK AT THAT AS WELL.

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AND IN DISCUSSIONS WITH JUDGE KING OVER THE WEEKEND,

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I WANTED TO BE CLEAR, HE WANTS ME TO HANDLE THIS MATTER IN ITS

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ENTIRETY.

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SO, I SPENT A LOT OF TIME ON THIS.

I LOOKED AT -- I

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SORT OF CREATED A LITTLE BIT OF A TIMELINE TO TRY AND FIGURE

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OUT WHAT'S BEEN GOING ON HERE.

AND I HAVE A GENERAL

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UNDERSTANDING THAT THIS WAS SORT OF IN PARALLEL TO OUR PREVIOUS

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DISCUSSIONS REGARDING PRIVILEGE LOG AND MATERIALS INVOLVING THE

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SONG AND --

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SO, YOU'VE GOT PAPERS.

THE PLAINTIFFS GOT A

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PRODUCTION FROM ASCAP.

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WERE SOME MATERIALS THAT PERHAPS ORIGINATED WITH COUDERT

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BROTHERS, A NEW YORK LAW FIRM.

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AND AN ASSERTION OF PRIVILEGE IN LATE MAY FROM THE COMPANY --

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FROM WARNER.

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DISCOVERY GOING ON.

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AND WITHIN THE PRODUCTION FROM ASCAP

THERE WAS A CLAW-BACK REQUEST

AND IN THE MEANTIME THERE WAS ADDITIONAL

WE SAT DOWN AS I RECALL ON JUNE 6.

AND SOMEBODY

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KINDLY ORDERED UP A COPY OF THE TRANSCRIPT.

SO, I SPENT TIME

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LOOKING AT WHAT WE HAD TALKED ABOUT THAT TIME -- AT THAT TIME.

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AND THE ASCAP MATERIALS WERE NOT ON THE TABLE NOR WERE THEY ON

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THE LOG AT ISSUE AT THE TIME.

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THEN.

AND SOME TIME HAS PASSED SINCE

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AND, SO, I UNDERSTAND THAT PLAINTIFFS WANT TO GET A

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RULING ON A DISCOVERY ISSUE THAT HAS BEEN PERHAPS FERMENTING

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FOR A WHILE.

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PRIVILEGE OR EXCEPTION TO THE PRIVILEGE.

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AND IT INVOLVES THIS JOINT OR COMMON INTEREST

AND FROM THE COMPANY'S PERSPECTIVE THEIR CLAIM IS

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ESSENTIALLY, HEY, TIME IS TICKING OFF THE CLOCK.

AND THIS WAS

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SOMETHING THAT COULD HAVE BEEN TAKEN UP EARLIER.

AND IT'S NOT

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THE BASIS FOR EX PARTE OR EXPEDITED RELIEF HERE.

AND I SAW THE

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WORDS "DELIBERATE" AND "TACTICAL" IN THE PAPERS HERE.

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MS. MANIFOLD, LET ME HEAR FROM YOU ON THESE ISSUES --

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AND, IN PARTICULAR, ON THE TIMING ISSUE.

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RELEVANT TO DISCUSS.

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MS. MANIFOLD:

I THINK THAT IS -- I THINK THAT IS THE

POINT OF FACT HERE.

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I THINK THAT'S

AND I THINK THERE SHOULD BE SOME CLEAR -- SOME
CLARITY OR SOME DETAIL ADDED TO THE TIMELINE.

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FIRST OF ALL, ASCAP PRODUCED DOCUMENTS MAY 9TH.

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PLAINTIFFS CONTACTED ASCAP'S COUNSEL TO GET THE

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CONFIDENTIAL DESIGNATION REMOVED FROM CERTAIN DOCUMENTS ON MAY

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19TH.

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THEN ON MAY 22ND ASCAP'S COUNSEL SENDS THE

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PLAINTIFF'S COUNSEL A LETTER SAYING THAT DEFENDANTS INTENDED TO

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ASSERT A PRIVILEGE CLAIM AS TO CERTAIN DOCUMENTS.

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AND WE WERE ALSO IN THE MIDST OF A MEET AND CONFER ON
THAT SAME DAY.

AND DEFENDANTS RAISED THE ISSUE VERBALLY TO US

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AS PART OF THAT MEET AND CONFER, EVEN THOUGH IT REALLY WASN'T

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TEE'D UP FOR THAT, QUITE FRANKLY.

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THEN TEN SECONDS LATER WE WERE KIND OF ON A CALL IN ANOTHER

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ISSUE.

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BUT WE GOT THE LETTER.

AND

SO, WE DID BRIEFLY DISCUSS IT.
THE SAME DAY PLAINTIFF'S COUNSEL SENT A LETTER TO

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ASCAP.

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-- AND WE SENT A SUBPOENA TO ASCAP.

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DEFENDANTS THAT WE WOULD SEQUESTER THE DOCUMENTS.

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SAME TIME, LABOR DAY IS THEN MAY 26TH -- WE'RE STILL WORKING ON

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AND AT THE SAME DAY WE NOTICED THE 30(B)(6) DEPOSITION
AND WE TOLD THE
THEN AT THE

THE JOINT STIPULATION ON THE PRIVILEGE LOG.
AND AS THE COURT POINTED OUT, THE ASCAP DOCUMENTS ARE

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NOT ON THE PRIVILEGE LOG.

IN FACT, THERE'S NOT A SINGLE ASCAP

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DOCUMENT ON THE PRIVILEGE LOG.

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INTEREST IN ASCAP WASN'T BRIEFED -- WASN'T ON THE TABLE AND

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HADN'T BEEN DISCUSSED BY THE PARTIES.

SO, THE ISSUE OF COMMON

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SO, THEN ON MAY 27TH WE SERVE OUR JOINT STIP, WHICH

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IS THE CONFERENCE CALL -- THE SERIES OF CONFERENCE CALLS THAT

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THE COURT REFERRED TO THAT DEALT WITH THE PRIVILEGE LOG WHICH

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HAS SINCE BEEN AMENDED TWICE AND STILL DOESN'T INCLUDE THE

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ASCAP DOCUMENTS.

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THE PARTIES WERE NEGOTIATING WITH REGARD TO THAT STIP.

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SO, IT WAS REALLY A PRIVILEGE LOG ISSUE THAT

AND THEN ON MAY 27TH ON THE SAME DAY THAT WE'VE

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SERVED OUR PART OF THE JOINT STIP TO THE PARTIES TO THE

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DEFENDANTS WE GET OBJECTIONS THAT THEY'RE NOT GOING TO PRODUCE

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A 30(B)(6) WITNESS WITH REGARD TO THE RELATIONSHIP WITH REGARDS

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TO ASCAP.

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AND I SHOULD ALSO NOTE THAT ON MAY 19TH THEY FINALLY

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RESPONDED TO A REQUEST FOR AN INTERROGATORY THAT DEALT WITH

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WHAT THEIR RELATIONSHIP WAS WITH REGARD TO ASCAP.

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PRIOR TO THIS IN DISCOVERY NEGOTIATIONS THEY HAD TAKEN THE

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POSITION THAT ASCAP WASN'T RELEVANT.

BECAUSE

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SO, FINALLY ON MAY 19TH WE GOT AN AMENDED

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INTERROGATORY WHICH DESCRIBED THE RELATIONSHIP BETWEEN ASCAP

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AND THE DEFENDANTS.

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AND, YOU KNOW, WE HAD BEEN MEETING AND

CONFERRING ON THAT ISSUE WELL PRIOR TO THAT.

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SO, THEN FINALLY -- FINALLY ON JUNE 2ND THE

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DEFENDANTS SEND US A LETTER SAYING, YOU KNOW, THIS IS OUR CLAIM

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OF PRIVILEGE.

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20(B)(5)(B).

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ASSERTING A COMMON-INTEREST ARGUMENT.

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WE'RE ASSERTING THE CLAW-BACK.
WE'VE SEQUESTERED THE DOCUMENTS.

YOU KNOW,
AND THEY'RE

THEN, THE MEET AND CONFER IS HELD ON JUNE 16TH WITH

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REGARD TO THAT ISSUE, THE 30(B)(6) DEPOSITION, AND ANOTHER

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RELATED DEPOSITION, WHICH IS GOING TO NOW PROCEED TOMORROW

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AFTER A MEET-AND-CONFER PROCESS.

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AND THEN AFTER THAT WE FILED A JOINT STIP ON JULY

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2ND.

SO, I THINK THAT THE PLAINTIFFS ACTED EXPEDITIOUSLY

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THROUGHOUT THE PROCESS AND ACTED VERY DILIGENTLY.

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IT'S IMPORTANT TO KNOW THAT, AGAIN, THESE DOCUMENTS WERE NOT ON

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THE PRIVILEGE LOG.

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PRIVILEGE LOG.

AND I THINK

THERE WERE NO ASCAP DOCUMENTS ON THE

AND THE FIRST TIME THAT THE DEFENDANTS SENT US

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A WRITTEN CORRESPONDENCE WITH REGARD TO ASSERTING THAT

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PRIVILEGE WAS JUNE 2ND.

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ASCAP ON MAY 22ND, YOU KNOW, WE, OF COURSE, SEQUESTERED THE

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DOCUMENTS IMMEDIATELY.

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LOOKED AT THEM.

OF COURSE, WHEN WE GOT THE NOTICE FROM

WE HAVEN'T USED THEM.

WE HAVEN'T

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AND IN THE CASES THAT THE DEFENDANTS OFFERED, THEY

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WERE BASICALLY CASES WHERE THEY -- WHERE THE DEFENDANTS, THE

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PRODUCING PARTY WERE MOVING TO BAR THE USE OF THE DOCUMENT.

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AND IN ONE OF THE SCHEDULING CASES, THE COURT NOTICED

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A DELAY OF, LIKE, 167 DAYS.

THAT'S NOT HERE.

I MEAN, IF

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THERE'S ANY DELAY HERE THERE'S A DAY HERE OR THERE.

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ORDER TO MEET THE 37-2 PROCESS, YOU KNOW, WE HAD TO DO A

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TEN-DAY MEET AND CONFER.

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KIND OF SURPRISES ME A LITTLE BIT THAT THEY WOULD TAKE THE

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POSITION THAT WE DIDN'T WORK DILIGENTLY AND EXPEDITIOUSLY.

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AND WE EVEN RESOLVED THE MOTION -- THE MOTION TO

BUT IN

WE HAD TO -- YOU KNOW, IT JUST -- IT

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QUASH THAT WAS FILED BY ASCAP.

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IS NOW GOING TO BE HEARD ON JULY 11TH, THE LAST DAY OF THE

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DISCOVERY PERIOD.

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THE COURT:

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MS. MANIFOLD:

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AND THEN THE ASCAP DEPOSITION

OKAY.
SO, QUITE FRANKLY, YOUR HONOR, I'M NOT

QUITE SURE WHAT MORE WE SHOULD OR COULD HAVE DONE.
THE COURT:

ALL RIGHT.

WELL, LET ME -- LET ME HEAR

FROM THE DEFENSE.
I JUST WANT TO CORRECT ONE THING.

ON JULY 2ND, WHAT

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I UNDERSTAND IS THAT YOU FILED YOUR -- BASICALLY YOUR

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APPLICATION TO SHORTEN TIME AND MAYBE YOUR PORTION OF THE

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DISCOVERY MOTION.

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JOINT FILING BECAUSE I DON'T THINK THE MUNGER FOLKS JOINED

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THAT.

I DON'T THINK THAT IT'S FAIR TO CALL IT A

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AM I CORRECT?

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MS. MANIFOLD:

YOU ARE ABSOLUTELY CORRECT, YOUR

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HONOR.

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ARGUMENT AND FACTUAL INFORMATION OUT OF IT AND JUST BASICALLY

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AND I TRIED TO REDACT BASICALLY ALMOST A LOT OF THE

LEAVE THE SET-UP TO THE DILIGENCE IN THE DISCOVERY PROCESS.

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THE COURT:

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MS. MANIFOLD:

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OKAY.

THAT'S --

AND YOU'RE RIGHT.

THE FINAL JOINT

STIPULATION WOULD NOT BE FILED UNTIL TODAY WITH THE COURT.

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THE COURT:

YES.

ACTUALLY, I DON'T EVEN KNOW IF IT'S

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EVER A JOINT STIPULATION.

IT'S A JOINT FILING, BUT.

I DON'T

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THINK ANYBODY EVER AGREES THAT WE HAVE A DISCOVERY FIGHT.

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ANYWAY, THAT'S JUST ANGELS ON THE HEAD OF A PIN.

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ALL RIGHT.

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MS. LEMOINE, MR. KAPLAN, DID YOU WANT TO

BE HEARD?

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MS. LEMOINE:

YES, YOUR HONOR, I DO.

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I WOULD SAY THAT THE ONLY TIME THE FILING REALLY

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BECOMES JOINT IS WHEN YOU HAVE TO MERGE THE FORMATTING STYLES

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OF BOTH LAW FIRMS.

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THE COURT:

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MS. LEMOINE:

YEP.
AT THAT POINT IT'S PRETTY CLEAR YOU'RE

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DOING SOMETHING TOGETHER.

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MS. MANIFOLD:

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(LAUGHTER.)

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MS. LEMOINE:

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THE COURT:

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MYSELF.

AND EVEN THAT'S HARD.

SO, I DO WANT TO RESPOND -I'VE DONE -- I'VE DONE IT MANY TIMES

IT'S --

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MS. LEMOINE: -- JUST BRIEFLY, YOUR HONOR.

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I WANT TO SAY THAT IT IS OUR POSITION THAT AS OF MAY

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22ND, THE PARTIES KNEW THAT WARNER CHAPPELL'S PRIVILEGE WAS AT

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ISSUE.

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BROTHERS FIRM THAT WERE AT STAKE.

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THEY KNEW THAT FEDERAL RULE 26(B)(5)(B) IS IN EFFECT.

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HAVE TO RAISE -- IF THEY HAVE A DISPUTE ABOUT A PRODUCED

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DOCUMENT AND ITS PRIVILEGED NATURE, THEY HAVE TO RAISE THAT

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WITH THE COURT PROMPTLY.

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IT KNEW THERE WERE LEGAL MEMORANDA FROM THE COUDERT
IT KNEW -- AND AT THAT POINT
THEY

THEY DID NOT DO THAT AND, INSTEAD, BROUGHT A

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DIFFERENT MOTION.

AND I WOULD TAKE ISSUE WITH MS. MANIFOLD'S

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CHARACTERIZATION OF THAT AS UNRELATED AND PERTAINING ONLY TO

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THE PRIVILEGE LOG.

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RAISED THE KEY LEGAL ISSUE THAT CURRENTLY IS BEING TEE'D UP FOR

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YOUR HONOR IF YOU GRANT THIS EX PARTE APPLICATION.

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THE ISSUE OF WHAT IS THE COMMON INTEREST, THE COMMON LEGAL

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INTEREST BETWEEN ASCAP AND WARNER CHAPPELL, BETWEEN PERFORMING

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RIGHTS ORGANIZATIONS AND WARNER CHAPPELL.

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HONOR WOULD LOOK BACK AT THAT JOINT STIPULATION, YOU'LL SEE

WHILE IT RELATED TO THE PRIVILEGE LOG, IT

AND THAT'S

I THINK IF YOUR

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THAT PLAINTIFFS RAISE THAT ISSUE IN THAT DOCUMENT.

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SO, THAT WAS FILED BEFORE MEMORIAL DAY WEEKEND -- OR

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THAT WAS FILED RIGHT AFTER MEMORIAL DAY WEEKEND, RIGHT AROUND

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THERE.

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TO KNOW TO BRING THIS MOTION THEN.

AND BY THAT TIME PLAINTIFF KNEW EVERYTHING THEY NEEDED

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AND I THINK IT'S WORTH NOTING THAT YOUR HONOR DID NOT

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SORT OF PUT US THROUGH OUR PACES OF FORMALITY AND MAKE US WAIT

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FOR THE HEARING DATES AND ALL THAT STUFF.

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AWAY SO WE COULD GET ON THE PHONE WITH YOU.

YOU CALLED US RIGHT

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AND ON THE PHONE CALL THE ISSUE DIDN'T COME UP.

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I WAS EXPECTING THAT IT WOULD, BUT I DECIDED, WELL, OKAY.

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MAYBE THIS LEGAL ISSUE WE'RE GOING TO WORK THROUGH.

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THAT'S THE STRATEGY CALL THAT PLAINTIFFS ARE MAKING.

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AND

MAYBE

BUT THEY PERSISTED IN SEEKING DISCOVERY REGARDING

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WHETHER THERE WAS A WAIVER.

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REGARDING THE ASCAP RELATIONSHIP IS ALL ABOUT WHETHER THERE'S A

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WAIVER OF A DOCUMENT THAT WE ALL AGREE IS PRIVILEGED.

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ALL RIGHT.

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AND LET'S BE CLEAR, THE ISSUE

FEDERAL RULE OF CIVIL PROCEDURE 26(B)(5)(B) AND THE

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CASES INTERPRETING IT DO NOT PERMIT THE PARTIES TO CONDUCT

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DISCOVERY INTO THE CLAIM OF PRIVILEGE.

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PROCEDURE PURSUANT TO WHICH WE CAN RESOLVE THAT CLAIM QUICKLY.

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WE WERE CLEAR THAT WE WOULD NOT PRESENT A WITNESS ON

IT'S MEANT TO PROVIDE A

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THE ISSUE OF WHETHER THE RELATIONSHIP WAS SUCH THAT THERE HAD

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BEEN A WAIVER.

THAT WAS THE ONLY ISSUE THAT THEY WERE LOOKING

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FOR IN THAT 30(B)(6) DEPOSITION.

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BUT THEY KNEW THAT IN LATE

MAY.

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SO, I THINK THAT WHAT HAPPENED HERE, LOOKING BACK, IS

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PLAINTIFFS DECIDED TO TRY TO BUILD A GOOD RECORD FOR THEMSELVES

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ON THIS ISSUE OF WAIVER OVER A DOCUMENT THAT WE ALL AGREE IS

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PRIVILEGED.

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I ALSO --

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THE COURT:

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CAN YOU STOP FOR JUST A -- STOP.

MS. LEMOINE --

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MS. LEMOINE:

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THE COURT:

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MS. LEMOINE:

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THE COURT:

-- WOULD LIKE TO JUST-JUST STOP FOR ONE SECOND.
SURE.
MS. MANIFOLD, IS THAT ACTUALLY YOUR

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POSITION?

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BUT THE PRIVILEGE HAS BEEN WAIVED, OR IS IT SOMETHING ELSE?

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BECAUSE I'D LIKE TO KNOW IF THAT'S AN ISSUE HERE.

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ARE YOU CONTENDING THAT THIS DOCUMENT IS PRIVILEGED

MS. MANIFOLD:

WELL, FIRST OF ALL, IT IS A WAIVER

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ISSUE, BUT THE WAIVER ISSUE IS RELATED TO WHETHER THERE'S A

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COMMON INTEREST.

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PARTY, WE ALL AGREE THAT THAT'S A WAIVER OF THE ATTORNEY-CLIENT

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PRIVILEGE.

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THEY'RE ARGUING THAT THERE SHOULD BE AN EXCEPTION TO
THAT WAIVER, WHICH WOULD BE COMMON INTEREST.

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SO, IF THIS DOCUMENT IS PRODUCED TO A THIRD

SO, THE ANALYSIS HAS TO GO TWO WAYS.
PARTY.

IS THIS A THIRD

AND IF IT'S PRODUCED TO A THIRD PARTY, THERE'S A

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WAIVER.

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PRIVILEGE AND THAT THERE'S A COMMON INTEREST.

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ISSUES AT STAKE.

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OR IS THERE AN EXTENSION OF THE ATTORNEY-CLIENT
SO, THERE'S BOTH

SO, I MEAN, TO SAY THAT IT'S ONE OR THE OTHER, I
THINK IS AN INCOMPLETE ANALYSIS OF THE ISSUE.
THE COURT:

I HAVEN'T SEEN THE MATERIAL.

IT HASN'T

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BEEN SUBMITTED TO ME.

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LAWYER AT COUDERT BROTHERS WAS SENT TO THE MUSICAL RIGHTS

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COMPANY OR WHATEVER -- SUMMY?

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BUT AS DESCRIBED, IF A LETTER FROM A

AM I GETTING THE NAME --

WARNER'S PREDECESSOR --

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MS. LEMOINE:

THAT'S CORRECT, YOUR HONOR.

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THE COURT:

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I MEAN, THAT'S OBVIOUSLY GOING TO BE PRIVILEGED, AND

YES.

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I DON'T THINK THAT THERE'S ANY DISPUTE THAT AT ORIGINATION

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THAT'S -- THERE'S A PRIVILEGE ISSUE THERE.

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AND, SO, IF THAT'S YOUR STARTING POINT, MS. LEMOINE,
I'M TOTALLY WITH YOU.
IF THE CONTENTION IS THAT BY THIS DOCUMENT THROUGH

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WHATEVER MEANS -- AND I'M NOT FULLY INFORMED ABOUT THAT -- ENDS

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UP IN THE HANDS OF ASCAP FOR PURPOSES OF ENFORCING RIGHTS OR

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WHATEVER ASCAP IS GOING TO DO, IF YOUR CLAIM IS THAT IS STILL

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PRIVILEGE WITHOUT WAIVER, AND IF THE PLAINTIFF IS SAYING, NO,

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THAT IS THE WAIVER, YOU KNOW, I GET THAT.

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THAT IS VERY SIMILAR TO WHAT WE WERE TALKING ABOUT EARLY ON

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THAT WE, YES, SUCCESSFULLY DUCKED IN JUNE.

AND THAT'S AN ISSUE

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BUT IS THAT SORT OF THE STATE OF PLAY?

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MS. MANIFOLD:

IT'S PLAINTIFF'S POSITION THAT IT'S

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THE LATTER, THAT YOU HAVE TO LOOK AT WHETHER THERE'S A COMMON

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INTEREST BETWEEN ASCAP AND SUMMY AND WHAT THAT INTEREST IS.

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AND PLAINTIFFS BELIEVE AND LOOKING AT U.S. VERSUS

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GONZALEZ THAT WE'RE ENTITLED TO, YOU KNOW, A DEPOSITION TO

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EXPLORE THE RELATIONSHIP BETWEEN THE TWO ENTITIES --

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THE COURT:

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MS. MANIFOLD: -- AND THE CONCEPT.

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ALL RIGHT.

MS. LEMOINE:

LET ME -- LET ME -- LET ME --

YOUR HONOR, IF I COULD RESPOND TO THAT

BRIEFLY?

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THE COURT:

YES, PLEASE.

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MS. LEMOINE:

I THINK YOUR HONOR HAS THE ISSUE

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EXACTLY.

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INTEREST DOCTRINE PROTECTS AGAINST THAT WAIVER ONLY COMES INTO

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PLAY IF, IN FACT, THE DOCUMENT IS PRIVILEGED.

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WHETHER THERE'S BEEN A WAIVER AND WHETHER THE COMMON

WE ALL AGREE THE DOCUMENT IS PRIVILEGED FROM THE

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START.

IT'S THE QUESTION OF WHAT WAS THE CONSEQUENCE OF IT

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HAVING BEEN SHARED WITH AFCAP -- ASCAP, PARDON ME.

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THE COURT:

RIGHT, RIGHT.

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MS. LEMOINE:

I THINK -- I DO WANT TO JUST POINT OUT

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THAT I WOULD LIKE YOUR HONOR TO READ THE CASE THAT MS. MANIFOLD

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JUST CITED TO YOU.

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WAS THE NINTH CIRCUIT REVERSED A DISTRICT COURT'S DECISION TO

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ALLOW A DEPOSITION TO GO FORWARD AS TO A PRIVILEGE ISSUE.

BECAUSE WHAT ACTUALLY HAPPENED IN THAT CASE

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SO, IT'S NOT IN THE -- I DON'T BELIEVE IT'S IN THE

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FEDERAL RULE 26(B)(5)(B) CONTEXT, BUT THE COURT REVERSED THAT

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AND, INSTEAD, HELD THAT AN EVIDENTIARY HEARING SHOULD BE HELD

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IN CAMERA.

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SO, THAT IS NOT ADEQUATE AUTHORITY FOR THERE BEING

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DISCOVERY IN THIS CASE, IN PARTICULAR, SINCE WE'RE DEALING WITH

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A FEDERAL RULE 26(B)(5)(B) SITUATION.

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MS. MANIFOLD:

I DIS- -- THE COURT CAN READ U.S.

VERSUS GONZALEZ ON ITS OWN.

I DISAGREE WITH MS. LEMOINE'S

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RECITATION OF THE CASE BECAUSE THE COURT THERE DECIDED WHETHER

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A DEPOSITION COULD GO AHEAD AND NOT AND WHETHER A MOTION TO

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QUASH WOULD BE GRANTED.

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MADE CERTAIN RULINGS WITH REGARD TO THE EVIDENCE THAT IT HAD

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BEFORE IT.

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NINTH CIRCUIT SENT IT BACK ON WORK PRODUCT VERSUS

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ATTORNEY-CLIENT PRIVILEGE AND ASKED THE COURT TO DO A FURTHER

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EVIDENTIARY ANALYSIS TO DETERMINE WHEN THE JOINT DEFENSE AROSE,

18

HOW A COMMON INTEREST AROSE, AND THE TIMING WITH REGARD TO THE

19

DISCLOSURES.

20

IT DENIED THAT MOTION TO QUASH AND

AND THEN IT WENT UP TO THE NINTH CIRCUIT.

AND THE

SO, IT SENT THE COURT BACK FOR A FURTHER IN CAMERA

21

EVIDENTIARY HEARING TO RESOLVE THESE ISSUES.

22

ANY DETERMINATION BY THE NINTH CIRCUIT THAT THE DEPOSITION AND

23

EXPLORATION OF THESE ISSUES PRIOR TO THAT THAT WAS PERMITTED BY

24

THE DISTRICT COURT WAS IMPROPER IN ANY WAY.

25

THE COURT:

ALL RIGHT.

BUT I DIDN'T SEE

WELL, I MEAN, I READ THE

17
1

POTATO CASE.

2

NOTES OF THE PREVIOUS HEARING.

3

I READ A BUNCH OF OTHER THINGS AND REVIEWED MY

I WILL TAKE A LOOK AT GONZALEZ IF IT'S RELEVANT HERE.

4

I MEAN, THE POINT -- I UNDERSTAND -- I UNDERSTAND THE POINT

5

ABOUT PLAINTIFF TAKING OR CONDUCTING DISCOVERY ABOUT THE

6

RELATIONSHIP BETWEEN ASCAP AND SUMMY, SLASH, WARNER.

7

UNDERSTAND THAT.

8
9

I

I DON'T KNOW THAT -- I DON'T KNOW THAT I'M ON BOARD
THAT THIS IS NECESSARILY USING THE DOCUMENTS IN VIOLATION OF

10

RULE 26.

IF THERE HAD BEEN REFERENCE MADE TO THEM, IF THERE

11

HAD BEEN SOMETHING HAVING TO DO WITH THE CONTENTS OR THE

12

GENERATION OF THEM, YOU KNOW, WE MIGHT GET A LITTLE BIT CLOSER.

13

I DON'T KNOW THAT I HEARD THAT THEY GOT THAT CLOSE TO

14

THAT ISSUE.

15

USE OF SOME STATEMENTS THAT ASCAP MADE IN TRYING TO QUASH THE

16

SUBPOENA ABOUT ITS STATEMENTS ABOUT ITS RELATIONSHIP WITH

17

WARNER HERE.

18

AND I'M LITTLE -- A LITTLE TURNED AROUND ON THE

MS. LEMOINE, YOU WERE ON YOUR WAY ON THE TIMING

19

ISSUE.

AND I DIDN'T MEAN TO CUT YOU OFF, BUT I WANTED TO SORT

20

OF MAKE SURE I UNDERSTAND REALLY WHERE THE DECISION POINT IS ON

21

HERE.

22

DID YOU WANT TO KEEP GOING?

23

MS. LEMOINE:

YES.

I MEAN, I SEE, YOUR HONOR.

I

24

THINK I'VE MADE -- YOU KNOW, I BELIEVE THAT THE REASON THEY

25

WERE LOOKING FROM ASCAP -- AND IF YOU LOOK AT THE 30(B)(6),

18
1

IT'S LIMITED TO WHETHER -- THE RELATIONSHIP IN THE -- TO WHERE

2

THERE HAD BEEN A WAIVER.

3

DEPOSITION OF ASCAP ON FRIDAY TO LOOK AT TWO THINGS.

4

AND NOW THEY ARE TAKING A 90-MINUTE

ONE, WHAT WAS MR. REIMER'S STATE OF MIND WHEN HE

5

PRODUCED THE DOCUMENT, AND, TWO, TO GET HIM TO -- I THINK GIVE

6

SOME TESTIMONY REGARDING HIS DECLARATION JUST -- TO UNDERSCORE

7

THESE POINTS.

8
9

THE 30(B)(6) THEY SERVED ON US WAS THE SAME.

SO, MY CONCERN IS THAT IT WENT TO THE WAIVER ISSUE.
AND I THINK THAT THERE ARE CASES THAT WE WILL CITE TO YOUR

10

HONOR IN THE JOINT STIP IF YOUR HONOR GRANTS THE EX PARTE

11

APPLICATION THAT YOU'LL SEE SORT OF DISCUSS WHETHER THAT'S

12

APPROPRIATE FOR THE PARTIES THEMSELVES TO DO RATHER THAN FOR

13

THE COURT TO DO.

14

I THINK THE COURT NEEDS TO MAKE IN OUR VIEW A FACTUAL

15

DETERMINATION IN THE FIRST INSTANCE AS TO WHETHER THERE'S THE

16

NEED TO GET INVOLVED IN THOSE DETAILS -- AFTER YOU DECIDE THE

17

COMMON INTEREST LEGAL ISSUE.

18

IF YOU THINK YOU NEED MORE FACTS AT THAT POINT, WE

19

WOULD SAY THAT THAT'S FOR THE COURT TO CONDUCT IN CAMERA TO

20

INSURE THAT THE PRIVILEGE STAYS PROTECTED.

21

BECAUSE, AGAIN, NOBODY DISAGREES.

WE ARE TALKING

22

ABOUT A PRIVILEGED DOCUMENT.

WE ARE ONLY TALKING ABOUT WHETHER

23

THERE HAS BEEN A WAIVER.

24

WHERE WE HAVE TO BE EXTRAORDINARILY CAREFUL AND PROTECT IT

25

BECAUSE WE VIEW THIS AS GOING TO THE HEART OF THE LEGAL ADVICE

AND THAT'S WHERE WE ARE IN A POSITION

19
1

THAT OUR PREDECESSOR OBTAINED.

2

THE COURT:

YOU SEE, I'M WONDERING WHETHER THERE ARE

3

TWO WAIVER ISSUES HERE, AND I WANT TO MAKE SURE I'M NOT

4

CONFLATING THE TWO.

5

WHEN COUDERT ADVISED SUMMY, YOU KNOW, THAT'S THE

6

ORIGINATION OF THE PRIVILEGE.

7

WE DON'T NEED TO GO OVER THAT AGAIN.

8

GUY OFF THE STREET GAVE ADVICE.

9

FIRM GAVE ADVICE TO SUMMY.

10

NO QUESTION, RIGHT?

I DON'T --

IT'S NOT AS IF JUST SOME

IT WAS A NEW YORK CITY LAW

I GOT IT.

AND, THEN, I THINK PART OF THE WAIVER ISSUE IS WHEN

11

SUMMY GAVE THAT LETTER, LETTERS -- I'M GOING TO MISSTATE THE

12

FACTS A LITTLE BIT -- TO ASCAP.

13

BURIED WAIVER ISSUE THERE.

14

INTEREST ISSUE.

15

IS PART OF THE WAIVER ARGUMENT THERE.

16

I THINK THAT THERE'S KIND OF A

IT MAY ALSO RAISE THE COMMON

BUT MY -- MY PERHAPS QUESTION IS WHETHER THERE

THEN, WE HAVE THE WAIVER THAT MAY HAVE OCCURRED IN

17

MAY OF THIS YEAR WHEN THE MATERIAL WAS TURNED OVER IN RESPONSE

18

TO A SUBPOENA BY ASCAP, EITHER ACTING AS AN AGENT OR IN A

19

COMMON INTEREST WITH WARNER AND THEN THE CLAW-BACK ISSUE.

20

MS. LEMOINE:

21

THE COURT:

22

MS. MANIFOLD:

23
24
25

RIGHT.
AM I OFF BASE HERE?
NO.

YOUR HONOR, THIS IS BETSY

MANIFOLD FOR THE PLAINTIFF.
I THINK THAT'S EXACTLY ACCURATE BECAUSE IF THERE IS A
COMMON INTEREST, THE ANALYSIS WOULD GO -- YOU KNOW, BOTH

20
1

PARTIES HAVE TO WAIVE.

2

NOW I'M DOING IT -- THE ASCAP WAIVER, WAS IT KNOWING AND

3

INTENTIONAL.

4

OF THE JOINT INTEREST.

5

THAT THAT'S WHAT THE DEPOSITION -- I MEAN, I'M PRESUMING THAT

6

THAT'S WHAT OUR DEPOSITION ON JULY 11TH WILL SHOW.

7

THAT'S WHAT IT SHOWS, THEN, WE NOW WOULD TURN BACK TO SAY, YOU

8

KNOW, YOU PRODUCED IT TO ASCAP.

9

THERE'S NO COMMON INTEREST THAT WOULD NOW PROTECT WHATEVER

10
11

AND, SO, THE ISSUE IS WAS THE AFCAP --

SO THIS WAY WE KNOW ASCAP HAS WAIVED THEIR PART
NOW THE ISSUE IS WHETHER -- I ASSUME

THERE'S THE WAIVER.

AND IF

AND THAT

PRIVILEGE EXISTED AT THE TIME THAT IT WAS PRODUCED.
SO, YOUR HONOR IS CORRECT, YOU HAVE TO HAVE WAIVERS

12

ON BOTH SIDES.

SO, THERE ARE TWO WAIVER ISSUES AND THEN YOU

13

LOOK AT THE COMMON INTEREST.

14

THE COURT:

SEE, I'M NOT --

15

MS. LEMOINE:

16

THE COURT:

17

MS. LEMOINE:

18

I MEAN, THAT'S SORT OF THE -- ONE OF THE CORE LEGAL

YOUR HONOR, IF I -GO AHEAD, MS. LEMOINE.
IF I COULD RESPOND TO THAT.

19

ARGUMENTS WE'VE BEEN ASSERTING THIS WHOLE TIME AS TO WHY MR.

20

REIMER'S STATE OF MIND DOESN'T REALLY MATTER HERE.

21

YOUR HONOR, IN THE JOINT STIP I'VE BEEN LOOKING AT,

22

YOU KNOW, PLAINTIFFS DON'T RAISE WHETHER MR. REIMER WAIVED.

23

BECAUSE THE LAW IN THE NINTH CIRCUIT IS THAT, AS MS. MANIFOLD

24

STATED, ONE PARTY CAN'T WAIVE.

25

THE COURT:

YES.

I MEAN, IT'S CLEAR -- IT'S CLEAR

21
1

WARNER DIDN'T WAIVE.

2

MS. LEMOINE:

3

THE COURT:

4

MS. LEMOINE:

5
6

EXACTLY.
OKAY.

THAT'S --

OKAY.

SO, IF WARNER DIDN'T WAIVE,

WHETHER ASCAP DID OR NOT, DOESN'T MATTER.
THE COURT:

I CERTAINLY GET THAT.

AND -- SO THAT'S

7

WHY I DON'T UNDERSTAND WHY ME LOOKING AT A PIECE OF PAPER IN

8

CAMERA HELPS ANYTHING.

9

ORIGINAL LEGAL ADVICE WHICH IS CONTAINED ON THE PIECES OF PAPER

10

I THINK WE ALL PRESUMED THAT THE

WAS AT SOME POINT IN THE 1900S PRIVILEGED.

11

MS. LEMOINE:

YES.

12

AND, YOUR HONOR, I WOULD -- ONE OF THE THINGS I HAD

13

ON MY LIST TO RAISE WITH YOU TODAY REGARDLESS OF WHAT THE

14

DIRECTION THAT THIS COURT WENT, IS THAT THE JOINT STIP THAT I

15

HAVE -- THE PORTION FROM PLAINTIFFS THAT I'VE BEEN WORKING ON

16

OVER THE HOLIDAY WEEKEND AND TODAY --

17

THE COURT:

HAPPY HOLIDAYS.

18

MS. LEMOINE:

19

I'M LIVING THE DREAM, YOUR HONOR.

THANK YOU.

IT'S A GREAT -- YOU KNOW,

20

THE COURT:

SO AM I.

21

GO AHEAD.

22

MS. LEMOINE: -- USES -- THAT USES THE -- IT ACTUALLY

23

DOES USE THE DOCUMENT A GREAT DEAL.

24

EXTENSIVELY.

25

IT QUOTES FROM IT

IT CHARACTERIZES IT.

MS. MANIFOLD SAID THIS MORNING THAT THEY HAVEN'T USED

22
1

THEM AND THEY HAVEN'T LOOKED AT THEM, THAT'S NOT CONSISTENT

2

WITH THE DOCUMENT I HAVE.

3
4

THE COURT:

OH, WHEN I SAW THE REDACTIONS I ASSUMED

THAT THEY WERE MAKING REFERENCE TO IT.

5

MS. LEMOINE:

6

CAN'T BE ANYTHING OTHER THAN USE.

7

YES.

AND IN OUR VIEW THAT -- THAT

NOW, WHEN THE ISSUE IS WAIVER, THERE IS NO REASON TO

8

GO INTO WHAT THE DOCUMENT SAYS.

9

NATURE.

10

THE COURT:

BECAUSE WE UNDERSTAND ITS

SEE, THIS IS -- THIS IS WHAT CONFUSES ME.

11

BY THE WAY, I'M NOT BEING CRITICAL OF ANYBODY.

12

DOING A NICE JOB.

13

SOME GOOD LAWYERING GOING ON HERE.

14

DISCUSSION A FEW WEEKS AGO ABOUT, YOU KNOW, WHAT GOES ON A LOG,

15

HOW THINGS GET PRODUCED -- AND I DON'T REMEMBER WHETHER ASCAP,

16

BMI WERE COMING UP OR SORT OF THEIR SIBLING ORGANIZATIONS IN

17

EUROPE.

18

FRENCH RIGHTS MANAGEMENTS FOR, YOU KNOW, BONJOUR A VOUS -- OH,

19

THE TRANSCRIBER IS GOING TO LOVE THAT ONE.

20

YOU FOLKS ARE

THIS IS AN INTERESTING CASE, AND THERE'S
AND WHEN WE WERE HAVING OUR

I MEAN, I REMEMBER HEARING A LOT ABOUT UK AND ITS

AND ONE OF THE THINGS I THINK I RECALL TALKING WITH

21

YOU ABOUT IS, YOU KNOW, FOR ME TO MAKE A DETERMINATION ON

22

COMMON INTEREST EXCEPTION OR WAIVER IS -- THERE ARE FACTUAL

23

ISSUES THERE REGARDING WHAT THE RELATIONSHIP IS BETWEEN

24

COPYRIGHT OWNER AND RIGHTS MANAGEMENT COMPANY AND WHAT THOSE

25

PARTIES ACTUALLY DO.

23
1

AND WHEN WE WERE TALKING ABOUT SUPPLEMENTAL FILINGS,

2

THAT WAS KIND OF AN ISSUE ON THE TABLE.

3

EXACTLY KNOW WHAT THIS FRENCH COMPANY IS AND WHAT IT WAS DOING

4

AND WHAT THE RELATIONSHIP WAS GOING TO BE AND, ON THAT BASIS,

5

MAKING A COMMON INTEREST DETERMINATION ONE WAY OR THE OTHER,

6

YOU KNOW, EXTENDING AND PROTECTING THE PRIVILEGE OR FINDING THE

7

PRIVILEGE TO BE A NONSTARTER REALLY KIND OF RELATED TO THAT.

8
9

MS. MANIFOLD:

I DON'T -- I DON'T

WELL, YOUR HONOR, AND THAT'S EXACTLY

WHY THE PLAINTIFF SERVED A 30(B)(6) NOTICE AND SERVED THE

10

SUBPOENA ON ASCAP -- TO GET EXACTLY THAT KIND OF FACTUAL

11

BACKGROUND.

12

THE COURT:

AND I'M NOT -- I'M NOT QUIBBLING ON THAT.

13

I THEN HAVE QUESTIONS AS TO WHY I NEED TO KNOW ABOUT THE

14

SUBSTANCE OF THE DOCUMENTS.

15

SOME EXTENT THE DOCUMENTS ARE.

16

NO USE OF THEM.

17

EXPLORING THE RELATIONSHIP BETWEEN THE COMPANIES, ALTHOUGH, YOU

18

KNOW, I'LL HEAR THAT IF THAT'S NECESSARY.

19

ANY WAY MEANS THAT THEY HAVEN'T BEEN SEQUESTERED.

20

THAT SOMEBODY HAS GOT THEM ON THEIR DESK AND THEY'RE LOOKING AT

21

THEM.

22
23
24
25

IT REALLY DOESN'T MATTER WHAT TO
AND, YOU KNOW, RULE 26 DOES SAY

I DON'T KNOW THAT YOU'RE MAKING USE OF THEM IN

CITING TO THEM IN
IT MEANS

AND THERE MAY BE AN ISSUE THERE.
SO, MY THOUGHTS -- I'M GOING TO TAKE THIS IN SERIES.

BECAUSE THAT'S MY RESPONSIBILITY HERE.
THE APPLICATION AND THE REQUEST IS TO SHORTEN TIME OR
TO EXPEDITE THE PROCESS BY WHICH THE ISSUE OF WHETHER THESE

24
1

MATERIALS ARE PRIVILEGED AND WERE PROPERLY OR IMPROPERLY

2

PRODUCED DEPENDS ON WHETHER THIS IS TIMELY, WHETHER WE GOT HERE

3

IN THE RIGHT WAY AND IN THE RIGHT MANNER.

4

EQUITABLE DETERMINATION THAT I HAVE TO MAKE.

5

I THINK THAT'S AN

I WILL SAY THAT, YOU KNOW, GIVEN -- WHERE I WAS IN

6

LATE MAY, EARLY JUNE WAS THAT THERE WAS AN ONGOING DISCUSSION.

7

THESE ISSUES WERE COMING TO THE FOREFRONT.

8

SOME DIFFICULTY IN MARSHALING MATERIALS, IN ADEQUATELY

9

DESCRIBING THEM ON A PRIVILEGE LOG.

10

THE DEFENSE HAD HAD

YOU FOLKS SPENT A LOT OF TIME ON THOSE ISSUES AND

11

EVENTUALLY CAME TO A RESOLUTION, WHICH I'M GRATEFUL FOR.

12

THOSE MATERIALS IT SEEMS LIKE YOU'VE BEEN ABLE TO LIVE WITH IT.

13

ON

I ABSOLUTELY UNDERSTAND THE FRUSTRATION WITH SORT OF

14

THE LATE REQUESTS TO MOVE FORWARD ON THIS ISSUE HERE, BUT --

15

AND I'M VERY SKEPTICAL OF SORT OF LAST-MINUTE, EVE-OF-DEADLINE

16

ISSUES.

17

TABLE AT THE TIME IN TERMS OF MATERIAL THAT THE COMPANY ITSELF

18

WAS PRODUCING, WE HAD THE OVERLAY OF ANOTHER PARTY

19

INADVERTENTLY PRODUCING AND THEN WITHDRAWING AND SOME OTHER

20

FACTUALS HERE -- FACTUAL ISSUES HERE.

BUT GIVEN THAT IT WAS PARALLEL TO WHAT WAS ON THE

21

I'M INCLINED TO HEAR THE MERITS AND FIGURE OUT WHERE

22

THINGS GO.

23

SELECTED IS GOING TO BE FEASIBLE.

24
25

I'M NOT SURE THAT THE DATE THAT YOU FOLKS HAVE

SO, I THINK -- I DON'T FIND THAT THE EX PARTE
APPLICATION WAS TACTICAL.

I'VE GOTTEN A DECENT RESPONSE FROM

25
1

THE PLAINTIFF AS TO THE ONGOING DILIGENCE THAT WAS GOING ON.

2

YOU KNOW, THERE WAS AN ONGOING RESPONSE FROM THE DEFENSE ON

3

SOME OF THESE ISSUES.

4

SOME OF IT IMMEDIATE; SOME OF IT LATER.

I'M GOING TO BE HARD-PRESSED TO SAY THAT THE DELAY IN

5

FILING THIS WAS DELIBERATE AND TACTICAL AS THE DEFENSE SAYS.

6

BUT I ALSO RECOGNIZE THAT THERE'S A NEED TO EXPEDITE THESE

7

THINGS.

8
9

SO, WHAT I'M INCLINED TO DO IS GRANT THE APPLICATION
TO SHORTEN TIME AND TO HEAR THIS MOTION.

10

PICK UP THE PACE.

11

REQUEST WAS TO SET IT FOR -- WHEN?

12

MS. MANIFOLD:

13

AM I CORRECT, MS. LEMOINE?

14

MS. LEMOINE:

15

THE COURT:

BUT WE'RE GOING TO

16

THIS WAS ORIGINALLY SET FOR -- OR THE

MS. LEMOINE:

18

THE COURT:

20

YES, MS. MANIFOLD, THAT'S CORRECT.
AND I'M NOT AVAILABLE FOR THAT.

YOU'RE

DOING DISCOVERY ON THE RELATIONSHIP ISSUE THIS WEEK YOU SAY?

17

19

JULY 30TH.

THAT'S CORRECT, YOUR HONOR.
I CAN HEAR THIS ANYTIME ON THE WEEK OF

THE 21ST.
AND, MS. LEMOINE, I'D LIKE TO HEAR FROM YOU.

21

YOU NEED TO RESPOND TO THE PAPERS.

22

SINCE

ALREADY TAKEN A RUN AT IT.

23
24
25

IT SOUNDS LIKE YOU'VE

WHAT WORKS FOR YOUR SCHEDULE?

AND, THEN, I'LL HEAR

FROM MS. MANIFOLD.
MS. LEMOINE:

SURE.

LET ME GET MY CALENDAR UP, YOUR

26
1

HONOR.

2

THE COURT:

3

MS. LEMOINE:

4

OF COURSE.
I APPRECIATE YOUR HONOR'S CONSIDERING

THIS ISSUE, AND I APPRECIATE YOUR RULING.

5

I WOULD ASK I THINK IF WE COULD -- YOU KNOW, IN ORDER

6

TO HOLD TO THE JULY 30TH HEARING, MS. MANIFOLD AND I HAD AGREED

7

THAT I WOULD GET MY PORTION TO HER BY END OF THE DAY TODAY.

8

I THINK THAT IF WE'RE GOING TO SORT OF AGREE ON A

9

SCHEDULE, I'D LIKE A COUPLE OF EXTRA DAYS.

10

THE COURT:

OH, NO.

NO, NO, NO.

YOU'RE GOING TO --

11

WE'LL SET A SCHEDULE RIGHT HERE AND RIGHT NOW BECAUSE I THINK

12

--

13

MS. LEMOINE:

14

THE COURT:

15

18

I THINK I WANT YOU TO HEAR ABOUT MY -- I

WANTED YOU TO HEAR MY THOUGHTS ON THIS.

16
17

OKAY.

MS. LEMOINE:
THAT.

NO, I APPRECIATE IT.

I UNDERSTAND YOUR HONOR'S VIEWS.
THE COURT:

I APPRECIATE

SO --

AND IF THERE'S A NEED FOR A FURTHER

19

RESPONSE FROM PLAINTIFF -- I MEAN, I'LL ACCEPT A SEPARATE

20

SUBMISSION.

21

GOING TO DO THIS THE RIGHT WAY.

22

TOWN ON JULY 30.

23

DATE AND A BETTER DATE.

24
25

THIS IS A BIG ISSUE, AND THIS IS IMPORTANT.

WEEK OF THE --

I JUST HAPPEN NOT TO BE IN

YOU DIDN'T KNOW THAT.

MS. LEMOINE:

SURE.

WE'RE

LET'S PICK ANOTHER

WHEN IS YOUR HONOR AROUND THAT

27
1

THE COURT:

YOU CAN HAVE ME ON THE MORNING OF

2

THURSDAY, THE 24TH.

3

25TH.

YOU COULD HAVE ME ON THE AFTERNOON OF WEDNESDAY, THE

4

23RD.

SO, AFTERNOON, WEDNESDAY, THE 23RD; MORNING, THURSDAY,

5

24TH; ANYTIME FRIDAY, 25TH.

6
7

YOU COULD HAVE ME ANY TIME ON FRIDAY, THE

MS. LEMOINE:

I COULD DO ANY OF THOSE DAYS, BUT

FRIDAY PROBABLY LOOKS BEST.

8

MS. MANIFOLD:

9

THE COURT:

10
11

I AGREE WITH MS. LEMOINE.

OKAY.

MS. MANIFOLD:

AND I KNOW THE COURT LIKES TO HEAR

THAT.

12

THE COURT:

YES.

YES, I DO.

13

WHY DON'T WE DO THIS.

LET'S SET THE MOTION FOR

14

HEARING ON FRIDAY, THE 25TH OF JULY, 9:30 A.M.

15

HERE IN MY COURTROOM H ON THE NINTH FLOOR OF THE SPRING STREET

16

COURTHOUSE.

17
18

NOW, MS. MANIFOLD HAS PRODUCED HER SIDE OF THE JOINT
SUBMISSION -- SEE, I DON'T SAY STIPULATION.

19

MS. MANIFOLD:

20

THE COURT:

21

THAT WILL BE

THANK YOU.

AND MS. LEMOINE AND MR. KAPLAN, YOU'RE

GOING TO HAVE UNTIL NEXT TUESDAY, THE 15TH --

22

MS. LEMOINE:

GREAT.

23

THE COURT:

24

MS. MANIFOLD WILL BE RESPONSIBLE FOR FILING THAT.

25

HOWEVER, I WILL ACCEPT SUPPLEMENTAL BRIEFS FROM

-- TO PROVIDE YOUR RESPONSE.

28
1

EITHER SIDE BY OR BEFORE NOON ON TUESDAY, THE 22ND.

2

MS. LEMOINE:

3

THE COURT:

4

THANK YOU, YOUR HONOR.
OKAY.

THAT'S GOING TO BE LESS THAN 10

PAGES BECAUSE WE'RE GOING TO BE FOCUSED AND TIGHT.

5

MS. LEMOINE:

6

MS. MANIFOLD:

7

THE COURT:

8

SO, THE JOINT SUBMISSION FROM THE DEFENSE TO

9
10
11
12
13

YES, YOUR HONOR.
THE 22ND?

CORRECT, YES.

I APOLOGIZE, YOUR HONOR.
YES.

PLAINTIFF BY OR BEFORE TUESDAY, THE 15TH.

AND, THEN, YOU'LL BE

RESPONSIBLE FOR FILING THAT.
AND, THEN, ANY SUPPLEMENTAL SUBMISSION FROM EITHER
SIDE, NOT TO EXCEED 10 PAGES, BY OR BEFORE TUESDAY, THE 22ND.
AND THE REASON I WANT TO SET -- YOU KNOW, IF THERE'S

14

ANY RESPONSE, IF THERE'S ANYTHING ELSE THAT'S GOING ON IN

15

DISCOVERY THAT I NEED TO KNOW ABOUT OR THAT YOU WERE OR WEREN'T

16

ABLE TO GET IN -- AND, REALLY, I THINK WE'RE FOCUSING --

17

HOPEFULLY THIS HAS BEEN HELPFUL TO FOCUS THINGS.

18

THINK THE FOCUS IS ON THIS COMMON INTEREST ISSUE THAT WE DANCED

19

UP AGAINST A FEW WEEKS AGO BUT KIND OF GOT AWAY FROM.

20

I MEAN, I

I DON'T KNOW THAT I NEED TO HEAR TOO, TOO MUCH ABOUT

21

ASCAP'S I'M CALLING IT INADVERTENT PRODUCTION IN MAY

22

SINCE THERE WAS A CLAW-BACK REQUEST.

23

WE AGREE THAT THERE HASN'T BEEN A FULL WAIVER, DO I NEED TO

24

HEAR TOO MUCH ABOUT ASCAP TURNED IT OVER?

25

MS. MANIFOLD:

I MEAN, MS. MANIFOLD, IF

I WOULD NEED TO LOOK AT THE ISSUE,

29
1

YOUR HONOR.

I'M NOT SURE I WANT TO COMMIT TO THAT.

2

THE COURT:

OKAY.

3

MS. MANIFOLD:

4

THE COURT:

5

MS. MANIFOLD:

6

THE COURT:

I THINK THE COURT'S RIGHT.

OKAY.

OKAY.

BUT --

NO, THAT'S -- THAT'S FINE.

I DON'T MEAN

7

TO PUT YOU ON THE SPOT.

BUT, YOU KNOW, THE CLIENT HERE, YOU

8

KNOW, ASSUMING WE'RE TALKING ABOUT AN AGENCY RELATIONSHIP, THE

9

CLIENT MADE AN ASSERTION HERE.

AND I THINK YOU WANT TO GIVE

10

SOME REAL THOUGHT TO WHETHER YOU WANT TO RELY ON THE FACT THAT

11

A LAWYER AT ASCAP, YOU KNOW, SHOVED IT IN AN ENVELOPE AND

12

TURNED IT OVER TO YOU.

AND, THEN, YOU HEARD WHAT YOU HEARD.

13

MS. MANIFOLD:

UNDERSTOOD.

14

THE COURT:

15

IS THAT FAIR, MS. LEMOINE?

16

MS. LEMOINE:

17

THE COURT:

OKAY.

THAT'S FAIR, YOUR HONOR.
I MEAN, I THINK -- I THINK THE ISSUE IS

18

WHAT IS THE RELATIONSHIP BETWEEN WARNER OR ITS PREDECESSOR AND

19

ASCAP AND WHETHER IT FITS WITHIN THIS DOCTRINE.

20

OF INTEREST.

21

PAPERS THAT THE RELATIONSHIP MAY BE SOMETHING WITH AN EYE

22

TOWARD LITIGATION.

23

THOUGHT AS TO WHETHER THE RELATIONSHIP HOLDS TRUE TO OTHER

24

THINGS, INCLUDING RIGHTS MANAGEMENT AND RIGHTS ASSERTION, OR

25

WHETHER THAT IS ITSELF SOMETHING WITH AN EYE TOWARDS

I THINK THAT'S

I MEAN, I SAW A LOT OF THINGS IN PLAINTIFF'S

BUT I'M SURE THAT YOU WANT TO GIVE SOME

30
1

LITIGATION.

2

SORT OF THE FUNCTIONAL RELATIONSHIP BETWEEN ASCAP AND ITS RIGHT

3

HOLDERS.

4

BECAUSE I THINK -- THAT'S A REAL ISSUE.

MS. MANIFOLD:

AND THEN

YOUR HONOR, WE HAVE THE DEPOSITION OF

5

A SENIOR ADMINISTRATOR OF THE COPYRIGHT DEPARTMENT OF WARNER

6

CHAPPELL TOMORROW.

7

QUESTIONS WITH REGARD TO THE RELATIONSHIP BETWEEN ASCAP AND

8

WARNER CHAPPELL AT THAT DEPOSITION SHOULD THE WITNESS BE

9

KNOWLEDGEABLE?

AND WOULD WE BE PERMITTED TO ASK ANY

10

THE COURT:

11

MS. LEMOINE:

MS. LEMOINE?
WELL, THAT IS SOMETHING THAT IN THE

12

PAST I HAVE SAID I THINK TOUCHES REALLY CLOSELY TO THE WAIVER

13

ISSUES.

14

AND I THINK WE WOULD -- AS TO THE RELATIONSHIP AND AS TO THE

15

SORT OF FACTS ABOUT THE RELATIONSHIP THAT MR. BLIETZ KNOWS,

16

THAT THAT WOULD NOT BE COVERED BY THE PRIVILEGE.

17

ON THAT.

AND I UNDERSTAND YOUR HONOR'S NEED FOR FACTS ON THAT.

18

THE COURT:

19

MS. LEMOINE:

WE CAN AGREE

OKAY.
MY CONCERN IS THAT WE ARE GOING TO GET

20

KIND OF CLOSE TO THE LINE, AND I'M WONDERING IF YOUR HONOR IS

21

AVAILABLE IN THE EVENT --

22
23
24
25

THE COURT:

AHH, HERE WE GO.

HERE WE GO.

THE CALL.

CAN WE HAVE A REFEREE CALLING ON THIS.
MS. LEMOINE:

I KNOW.

THIS IS SO -- THIS IS SO

NEW YORK AND NOT CALIFORNIA, RIGHT? -- WHAT I'M DOING RIGHT

31
1

NOW.

2

THE COURT:

IT'S --

3

MS. LEMOINE:

4

AND WE CAN JUST --

5

THE COURT:

6

MS. LEMOINE:

7

THE COURT:

BUT, YOU KNOW, IF NOT, THAT'S FINE TOO.

NO, NO, NO.
WE CAN TAKE IT QUESTION BY QUESTION.
NO, NO.

THAT'S ENTIRELY LEGITIMATE.

8

LOOK, YOU BOTH HAVE YOUR EYES ON THE RIGHT THINGS HERE.

9

ADMIRE THAT.

10

AND I

AND YOU'RE NOT FIGHTING FOR THE SAKE OF FIGHTING.

OBVIOUSLY QUESTIONS ABOUT SPECIFIC CIRCUMSTANCES,

11

SPECIFIC RIGHTS FOR A SPECIFIC SONG ARE GOING TO BE POTENTIALLY

12

PROBLEMATIC.

13

HOW DO CERTAIN SITUATIONS IN GENERAL GET HANDLED, YOU KNOW,

14

RAISES LESS ISSUES.

15

NOW.

GENERALLY WHAT IS IT THAT ASCAP DOES FOR CLIENTS.

AND I THINK YOU'VE TOUCHED ON THAT RIGHT

16

WHAT TIME IS THE DEPOSITION SCHEDULED FOR?

17

MS. LEMOINE:

18

THE COURT:

19

MS. MANIFOLD:

20

THE COURT:

21

MS. LEMOINE:

22

THE COURT:

TEN O'CLOCK TOMORROW, YOUR HONOR.
DIDN'T GET IT.

WHAT TIME?

10:00.

10:00 A.M.?
10:00 A.M.
I CAN BE AVAILABLE IF NEED BE TO RULE ON

23

SPECIFIC PRIVILEGE ISSUES.

USE SOME JUDGMENT ON THAT.

24

YOU CAN AGREE ON SORT OF WHERE YOU'RE GOING.

25

ISSUES, I AM AVAILABLE IN THE LATE MORNING.

SEE IF

BUT IF THERE ARE
YOU CAN CALL

32
1

MS. MC KAMIE AT [phone].

2

OF THESE ISSUES I CAN MAKE MYSELF AVAILABLE.

3

YOU CAN SORT OF -- YOU'VE DONE THESE THINGS BEFORE.

4

REACH AN IMPASSE ON SOMETHING, PUT A THUMBTACK ON IT.

5

OTHER AREAS.

MS. LEMOINE:

7

THE COURT:
IT UNIFORMLY.

9

YOU KNOW, SEE IF
IF YOU
HIT

SEE WHETHER THERE'S OTHER ISSUES.

6

8

AND BECAUSE OF THE IMPORTANCE

RIGHT.
THEN WE CAN COME BACK AND TRY AND RESOLVE

BOTH SIDES.

10

BUT I THINK -- I THINK THIS MAY BE RELEVANT TO

AND, MS. LEMOINE, I KNOW YOU'RE DEFENDING THIS.

I

11

KNOW YOU'RE ASSERTING THIS PRIVILEGE.

12

THAT ARE OF BENEFIT TO YOU FACTUALLY THAT YOU WANT ME TO HAVE.

13

MS. LEMOINE:

14

THE COURT:

THERE MAY BE ISSUES HERE

UNDERSTOOD.
AND YOU MAY WANT TO DEVELOP -- YOU MAY

15

WANT TO DEVELOP THEM IN A CROSS THAT YOU WOULDN'T ORDINARILY

16

TAKE.

17

MS. LEMOINE:

18

THE COURT:

19

MS. LEMOINE:

I APPRECIATE THAT, YOUR HONOR.
YES.
AND THAT'S-- I MEAN, I'M STRUGGLING

20

RIGHT NOW WITH SORT OF A QUESTION, AND I'LL JUST TALK IT

21

THROUGH --

22

THE COURT:

YES.

23

MS. LEMOINE: -- IF THAT'S ALL RIGHT.

24

THE COURT:

25

MS. LEMOINE:

PLEASE.
YOU KNOW, THIS DEPOSITION OF ASCAP IS

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1

TO TAKE PLACE ON FRIDAY.

IT IS AN EXPENSE FOR OUR CLIENT, FOR

2

WARNER CHAPPELL TO SORT OF FLY A LAWYER OUT FOR A 90-MINUTE

3

DEPOSITION OF ASCAP WHEN, AS YOUR HONOR HAS POINTED OUT,

4

THERE'S NOT A LOT OF RELEVANCE TO WHAT HIS STATE OF MIND WAS.

5

BUT ON THE RELATIONSHIP ISSUES I DO SEE THE BENEFIT

6

OF IT.

7

SAY LET'S NOT DO THAT TOMORROW -- OR, SORRY, FRIDAY, OR DO I,

8

YOU KNOW, SORT OF -- DO WE SORT OF GET THROUGH IT AND SEE WHAT

9

DEVELOPS IN THE NEXT COMING -- SUPPLEMENTAL BRIEFING.

10

SO, I'M SORT OF STRUGGLING WITH DO I ASK YOUR HONOR TO

MS. MANIFOLD:

I'M SOMEWHAT STRUGGLING WITH THE

11

ANALYSIS THAT NEW YORK IS INCONVENIENT BECAUSE WARNER CHAPPELL

12

PRODUCED THEIR 30(B)(6) WITNESS IN NEW YORK AT THEIR -- AT

13

THEIR REQUEST.

SO --

14

MS. LEMOINE:

I'LL --

15

MS. MANIFOLD:

SO, WE TOOK THE DEPOSITION IN NEW YORK

16

FOR THE BENEFIT OF WARNER CHAPPELL BECAUSE THAT'S WHAT THEY

17

ASKED US TO DO.

18

INCONVENIENCE FOR US.

WE HAVE AN OFFICE THERE SO IT WASN'T AN

19

THE COURT:

20

MS. MANIFOLD:

21

RESOLVED BY ASCAP AND PLAINTIFFS.

22

THE DEFENDANTS COULD HAVE WEIGHED IN AT THAT POINT.

23

I THINK IT WOULD BE INAPPROPRIATE TO ASK FOR ANY SORT OF STAY

24

OF THAT DEPOSITION AT THIS POINT BASED ON THIS RECORD.

25

THE COURT:

OKAY.
AND I THINK THE MOTION TO QUASH WAS
AND YOU CERTAINLY COULD --

I DON'T THINK SHE'S ASKED THAT.

I DON'T --

I THINK

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THAT HER POINT REGARDING THE INTENT OF ASCAP'S REPRESENTATIVE

2

INADVERTENTLY PRODUCING MATERIALS MAY HAVE LIMITED RELEVANCE TO

3

WHERE WE'RE GOING.

4

AND YOU MAY WANT TO GIVE SOME FURTHER THOUGHT TO IT.

AND THAT WAS THE ISSUE I WAS PUTTING TO YOU

5

MS. MANIFOLD:

6

THE COURT:

7

OKAY.

I THINK YOU KNOW WHERE I AM ON SOME OF

THESE ISSUES.

8

MS. MANIFOLD:

9

THE COURT:

I DO, YOUR HONOR.

OKAY.

10

MS. MANIFOLD:

11

MS. LEMOINE:

THANK YOU.
YOUR HONOR, IF I COULD SUGGEST -- I

12

KNOW YOU'VE BEEN GENEROUS WITH YOUR TIME THIS MORNING.

13

APPRECIATE IT.

14

I

IT SOUNDS LIKE WE'RE WRAPPING UP.

IF I COULD JUST DO ONE MORE THING BEFORE WE --

15

THE COURT:

16

GO AHEAD.

MS. LEMOINE:

I DO WANT TO BE CLEAR ABOUT WHEN WE PUT

17

IN THE JOINT STIPULATION, WOULD YOUR HONOR AGREE THAT IT SHOULD

18

NOT INCLUDE ANY REFERENCE OR CHARACTERIZATION TO THE DOCUMENT?

19

AND WOULD YOUR HONOR JUST -- COULD WE LEAVE THE DOCUMENT OUT AT

20

THIS POINT.

21

MS. MANIFOLD:

I THINK WE PUT AN APPLICATION TO FILE

22

IT UNDER SEAL.

AND I THINK THAT 26(B)(5)(B) CLEARLY SAYS THAT

23

THE INFORMATION MAY BE PROVIDED TO THE COURT UNDER SEAL FOR A

24

DETERMINATION OF THE CLAIMS.

25

THE DOCUMENTS TO THE COURT UNDER SEAL AND DISCUSS WHAT THEY

SO, YOU KNOW, WE HAVE TO PROVIDE

35
1

ARE.

2

THE COURT:

WELL--

3

MS. MANIFOLD:

AND I THINK THERE -- I DON'T HAVE THE

4

DOCUMENTS IN FRONT OF ME RIGHT NOW BECAUSE THEY'RE SEQUESTERED.

5

BUT, YOU KNOW, I DO THINK THERE MAY BE RELEVANCE TO WHAT THE

6

RELATIONSHIP IS BETWEEN THE TWO.

7

INTO CONSIDERATION, BUT WE'RE FILING AN APPLICATION TO FILE

8

UNDER SEAL.

9

UNREDACTED VERSION, BOTH OF WHICH I'VE PROVIDED TO THE

I MEAN, I CERTAINLY WILL TAKE

WE'RE FILING THE DOCUMENTS BOTH IN A REDACTED AND

10

DEFENDANTS.

11

IF THEY FEEL THAT THE REDACTED VERSION THAT WOULD BE PUBLICLY

12

FILED SHOULD BE FURTHER REMOVED.

13

THEY'RE WELCOME TO GO THROUGH AND REDACT FURTHER

BUT I THINK THE COURT HAS TO HAVE A FULL PICTURE.

14

AND THE COURT'S GOING TO GET THE DOCUMENTS ANYWAY BECAUSE THE

15

RULE REQUIRES THAT I PROVIDE THEM TO THE COURT UNDER SEAL.

16

THE COURT:

NO, IT DOESN'T ACTUALLY.

I'M LOOKING AT

17

IT AND I SEE -- I'M LOOKING AT 26(B)(5)(B).

18

"MUSTS."

19

RETRIEVE.

20

INFORMATION TO THE COURT UNDER SEAL FOR A DETERMINATION OF THE

21

CLAIM.

22

AND THERE ARE SOME

YOU ARE REQUIRED TO RETURN OR SEQUESTER.

YOU MUST

AND THE RULE SAYS THAT YOU MAY PRESENT THE

I DON'T -- IT'S HARD FOR ME TO SAY THAT I HAVE TO SEE

23

THE DOCUMENT WHEN I HAVEN'T SEEN THE DOCUMENT AND I DON'T

24

REALLY KNOW WHAT IT SAYS.

25

IF THERE ARE ASPECTS OF -- AND I JUST PRESUME IT'S A

36
1

LETTER FROM COUDERT TO SUMMY TALKING ABOUT THE COPYRIGHT

2

"HAPPY BIRTHDAY," "GOOD MORNING" OR MAYBE OTHER THINGS.

3

JUST PRESUME THAT.

4

I CAN

THAT THERE WAS LEGAL ADVICE CLAIMED.

5

OKAY.

FOR

I DON'T THINK THERE'S A CHALLENGE

IF THERE IS SOMETHING ABOUT THE LETTER THAT RELATES

6

TO ITS DISSEMINATION TO THIRD PARTIES, THAT RELATES TO ASCAP'S

7

ROLE HERE AND TO THE COMMON INTEREST COMPONENT OF REALLY WHAT'S

8

AT ISSUE, THEN, MAYBE I NEED TO SEE IT.

9

BOTH PARTIES' INTERESTS FOR ME TO SEE IT.

10

AND IT MIGHT BE IN

HOWEVER, IF IT'S JUST SORT OF GENERALIZED LEGAL

11

INFORMATION THAT IS IRRELEVANT TO THE ACTUAL ISSUE THAT I NEED

12

TO DETERMINE, THEN, I'M NOT SURE I SEE THE RELEVANCE.

13

AGAIN, I'M TALKING ABOUT A DOCUMENT I HAVEN'T SEEN AND I DON'T

14

KNOW ANYTHING ABOUT.

15

FRANKLY DISCUSS IT.

16

BUT,

AND I THINK THAT YOU FOLKS MAY WANT TO

I UNDERSTOOD YOU -- I UNDERSTAND THAT YOU WROTE IT --

17

YOU WROTE YOUR SECTION OF THE MOTION WITH, YOU KNOW, YOUR

18

UNDERSTANDING AS TO WHAT THE ISSUES WERE IN DISPUTE.

19

IT MAY BE THAT THE ISSUES HAVE NARROWED,

20

MS. MANIFOLD.

IT MAY BE THAT IT'S NOT NECESSARY.

21

FOR ME TO GIVE YOU KIND OF AN ADVISORY DETERMINATION WHEN I

22

DON'T REALLY KNOW WHAT'S GOING ON.

23

DOES THAT -- DOES THAT HELP?

24

MS. MANIFOLD:

IT'S HARD

25

APOLOGIES, YOUR HONOR.

I THINK I MIGHT BE A BIT CONFUSED.

MY

37
1

THE COURT:

2

I PRESUME THAT THE FOUR CORNERS OF THE LETTER INCLUDE

3

OKAY.

PRIVILEGED INFORMATION.

4

YOU AGREED WITH ME AWHILE AGO?

5

MS. MANIFOLD:

YES.

NO, THERE'S NO -- THERE'S NO

6

DOUBT THAT COUDERT BROTHERS ARE ATTORNEYS, AND THERE'S NO DOUBT

7

THAT THEY WERE PROVIDING LEGAL ADVICE.

8

THE COURT:

BINGO.

9

AND, SO, THE QUESTION IS WHETHER THERE WAS SOMETHING

10

WITHIN THE FOUR CORNERS OF THAT LETTER AND ITS TRANSMITTAL TO

11

ASCAP THAT RELATE TO THE COMMON INTEREST EXCEPTION TO THE

12

WAIVER OF THE PRIVILEGE, WHICH SEEMS LIKE IT'S THE DIRECTION

13

WHERE BOTH PARTIES ARE GOING.

14

SO, I DON'T AS A MATTER OF THE RULE HAVE A

15

REQUIREMENT TO SEE THOSE MATERIALS.

16

THE ABSTRACT.

17

THAT IS RELEVANT TO THE DETERMINATION OF THE CLAIM, WHICH IS

18

THE LANGUAGE OF THE RULE.

UNLESS THERE IS SOMETHING NECESSARY ABOUT THEM

19

MS. LEMOINE:

20

THE COURT:

21
22
23
24
25

I COULD RULE ON THEM IN

COULD I -BECAUSE THAT PART OF THE RULE IS

PERMISSIVE.
MS. MANIFOLD:

IT SAYS THAT THE PARTY MAY.

IT SEEMS

-- IT'S THE MOVING PARTY'S OPTION AS TO WHETHER TO PROVIDE THE
INFORMATION OR NOT.
THE COURT:

THAT'S --

38
1

MS. MANIFOLD:

I DON'T -- I THINK -- I THINK IT WOULD

2

BE INAPPROPRIATE FOR THE COURT TO RULE IN ADVANCE AS TO WHETHER

3

THEY DO OR DON'T WANT TO REVIEW THE INFORMATION.

4

DON'T -- I DON'T THINK THAT THE DEFENDANTS HAVE A RIGHT TO

5

REQUEST AT THIS POINT THAT WE NOT ATTACH THE LETTERS WHEN WE'RE

6

ENTITLED TO DO SO.

7

MS. LEMOINE:

8

THE COURT:

9

MS. LEMOINE:

I MEAN, I

YOUR HONOR, IF I COULD RESPOND TO THAT?
SURE.
I THINK IN LIGHT OF THE FACT THAT WE

10

ALL AGREE IT'S PRIVILEGED, THE STANDARD FOR IN CAMERA REVIEW IS

11

VERY, VERY HIGH AS YOUR HONOR IS AWARE.

12

YOU ABOUT IT.

13

SHOWING THAT THERE'S GOING TO BE SOMETHING ABOUT THE LETTER

14

THAT'S GOING TO SHED SOME LIGHT ON THIS -- WHETHER IT'S -- YOU

15

KNOW, IF A CRIME FRAUD EXCEPTION, THAT'S THE APPLICABLE LAW.

16

I DON'T HAVE TO TELL

YOU KNOW, THERE HAS TO BE SORT OF A PRIMA FACIE

I THINK THAT MS. MANIFOLD AND I WOULD AGREE THAT THE

17

CONTENT OF THE MEMORANDA DOES NOT RELATE TO THE COMMON INTEREST

18

ISSUE THE COURT IS GOING TO DECIDE.

19

OBLIGATION I THINK TO ASK THE COURT TO RECEIVE THESE PAPERS IN

20

THE FIRST INSTANCE WITHOUT THIS DOCUMENT BEING QUOTED AND

21

WITHOUT THIS DOCUMENT BEING ATTACHED.

22

AND IN THAT CASE IT'S MY

NOW TO BE CLEAR, I'M NOT SAYING THEY CAN'T SAY THE

23

DOCUMENT WAS SENT WITH A LETTER AND CHARACTERIZE IT AT WHAT THE

24

LETTER LOOKED LIKE.

25

SAY ABOUT THAT, I UNDERSTAND.

YOU KNOW, IF THERE ARE THINGS THEY WANT TO
IF THEY WANT TO CHARACTERIZE HOW

39
1

THEY THOUGHT THE SUBMISSION WAS MADE BACK IN 1979 BY SUMMY TO

2

ASCAP, THAT'S FINE.

3

COMMUNICATION SHOULD NOT BE SHARED EVEN WITH THE COURT IN

4

CAMERA, FRANKLY, UNLESS IT'S ABSOLUTELY NECESSARY.

I'M TALKING ABOUT THE CONTENT OF THE

5

THE COURT:

WELL, I --

6

MS. MANIFOLD:

I DISAGREE.

I THINK WE HAVE A RIGHT

7

TO HAVE THE LETTER PLACED IN FRONT OF THE COURT FOR IN CAMERA

8

REVIEW.

9

JUDGE KING.

AND THAT'S WHY A MAGISTRATE JUDGE IS DOING IT AND NOT
AND THAT'S WHY THE TRIAL WILL BE CONDUCTED AND

10

SUMMARY JUDGMENT WILL BE DECIDED BY JUDGE KING AND NOT BY

11

MAGISTRATE WILNER.

12

AND TO THE EXTENT -- I MEAN, I'D HAVE TO REVIEW MORE

13

CAREFULLY WITH THE COURT'S GUIDANCE AND THIS ARGUMENT IN MIND,

14

BUT IT'S NOT CLEAR TO ME THAT THAT LETTER DOES NOT TOUCH ON IN

15

SOME WAY THE COMMON INTEREST, THE RELATIONSHIP, AND WHY THE

16

LETTER WAS SENT.

17

SENT TO ASCAP.

18

ACCIDENTALLY GO TO ASCAP.

19

BECAUSE FOR SOME REASON, THIS INFORMATION WAS
IT WASN'T DONE IN A VACUUM.

IT DIDN'T

SO, THE NUANCE OF HAVING SENT THAT LETTER TO ASCAP

20

FOR A REASON WITH THIS INFORMATION IS RELEVANT TO THE NATURE OF

21

THE RELATIONSHIP AND WHY IT WAS SENT.

22

SO, I THINK IN ORDER TO MAKE -- TO RESOLVE THE ISSUE

23

OF WHETHER THE PRIVILEGE TRAVELED, WHETHER THERE IS A COMMON

24

INTEREST, WHETHER THERE WAS A WAIVER IN THE INTENTIONAL SENDING

25

OF THE LETTER, I THINK THAT THE COURT CAN ONLY DO THAT BY

40
1

REVIEWING THE LETTER.

2

THE COURT:

I CAN'T -- I CAN'T RULE ON SOMETHING THAT

3

I DON'T HAVE IN FRONT OF ME.

4

MATERIAL.

5

SUBMISSION TO THE COURT FOR A DETERMINATION OF THE CLAIM OF

6

PRIVILEGE UNDER SEAL WOULD SEEM TO ME IN THE ORDINARY COURSE BE

7

TO SAY, HEY, JUDGE, WAS THIS REALLY A LETTER OR MATERIAL

8

BETWEEN A CLIENT AND A LAWYER FOR PROVISION OF LEGAL ADVICE.

9

I HAVEN'T.

YOU FOLKS HAVE SEEN THIS

I MEAN, CERTAINLY 26(B)(5)(B) AND

AND, YOU KNOW, YES, NO, MAYBE SO -- LOOKING AT IT

10

MIGHT ON ITS FACE WITHOUT ASSISTANCE BE OF IMPORTANCE TO THE

11

COURT.

12

I THINK THERE IS AN AGREEMENT BETWEEN THE PARTIES

13

THAT THERE IS A PRIVILEGE THAT WAS ORIGINALLY RELEVANT TO THIS

14

LETTER.

15

MS. MANIFOLD:

IT'S A MEMO ATTACHED TO A LETTER.

16

THE COURT:

17

AND, SO, YOU KNOW, I CAN'T -- I CAN'T TELL YOU THAT I

FAIR ENOUGH.

THE MATERIALS, YES.

18

KNOW THE RELEVANCE OF LOOKING AT THIS MATERIAL IN RESPECT TO A

19

RELATED CLAIM WHICH IS WHETHER THAT PRIVILEGE HAS BEEN

20

DISSIPATED THROUGH SUBSEQUENT USE.

21

WHETHER EVEN LOOKING AT THE SOURCE OF THOSE MATERIALS FOR

22

MAKING A DETERMINATION ABOUT THAT, WHETHER THAT'S APPROPRIATE.

23

AND, YOU KNOW, QUERY

TYPICALLY IN A CRIME FRAUD EXCEPTION APPLICATION

24

REFERENCE TO THE PUTATIVELY PROTECTED MATERIALS IS GENERALLY

25

NOT APPROPRIATE.

THAT IS, YOU CAN'T USE THE MATERIALS

41
1

THEMSELVES TO REFUTE A CLAIM OF PRIVILEGE.

2

BUT I CAN'T PREJUDGE ANYTHING HERE.

3

SO, MAYBE YOU JUST BOTH TAKE ANOTHER LOOK AT THIS.

4
5

I CAN'T.

CONSIDER WHAT IT IS THAT I NEED TO RESOLVE.
YOU KNOW, I UNDERSTAND MS. MANIFOLD'S POINT THAT,

6

HEY, WE HAVE A PRIVILEGE ISSUE.

7

SEE THE DOCUMENT TO MAKE SURE IT'S PRIVILEGED.

8
9

IT'S PRUDENT FOR THE COURT TO

IF YOU FOLKS AGREE IT'S PRIVILEGED, AND THEN WE HAVE
OTHER ISSUES AT PLAY, I JUST ASK YOU TO TAKE A LOOK AND GIVE

10

CONSIDERATION AS TO WHETHER IF THAT ORIGINAL GROUND LEVEL ISSUE

11

HAS BEEN RESOLVED WHETHER I NEED TO GO FURTHER ON IT AND WHAT

12

USE, IF ANY, THE PARTIES MAKE OF IT IN THE FILING.

13
14

I WILL IN ADVANCE RELIEVE YOU OF YOUR OBLIGATION TO
SUBMIT AN APPLICATION TO FILE THE MATTER UNDER SEAL.

15

MS. LEMOINE:

16

THE COURT:

THANK YOU, YOUR HONOR.
YOU CAN PUT ON THE FACE OF THE REDACTED

17

-- EXCUSE ME, ON THE UNREDACTED VERSION THAT IT'S UNDER SEAL

18

PURSUANT TO JUDGE WILNER'S ORDER OF THIS DAY.

19

YOUR DETERMINATIONS CONSISTENT WITH YOUR OBLIGATIONS.

AND YOU CAN MAKE

20

OKAY.

21

THE JOINT FILING NEXT TUESDAY.

22

SUPPLEMENTAL BY THE FOLLOWING TUESDAY.

23

AND WE HAVE A GREAT SIT-DOWN ON FRIDAY MORNING.

24

MS. LEMOINE:

25

YOUR HONOR.

SO, WE HAVE A WAY FORWARD HERE.

THAT'S GREAT.

THANK YOU VERY MUCH,

42
1
2

MS. MANIFOLD:

THANK YOU, YOUR HONOR, FOR YOUR TIME

AND INTEREST.

3

THE COURT:

4

GOOD LUCK.

5

MS. LEMOINE:

6

MS. MANIFOLD:

7

THE COURT:

8

(TELEPHONIC CONFERENCE CONCLUDES 10:57 A.M.)

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THANK YOU.

THANK YOU.
THANK YOU.

BYE.

43
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2

C E R T I F I C A T E

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4

I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT

5

FROM THE ELECTRONIC SOUND RECORDING OF THE PROCEEDINGS IN THE

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ABOVE-ENTITLED MATTER.

7
8
9
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/S/ DOROTHY BABYKIN

JULY 13, 2014

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______________________________

___________

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FEDERALLY CERTIFIED TRANSCRIBER

DATED

13

DOROTHY BABYKIN

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