Rupa Marya v. Warner Chappell Music Inc

Filing 123

NOTICE OF MOTION AND MOTION for Order for (i) OVERRULING DEFENDANTS' CLAIM OF PRIVILEGE IN DOCUMENTS PRODUCED BY A NON-PARTY, OR PERMITTING A SECOND RULE 30(b)(6) DEPOSITION TO DETERMINE THE FACTUAL BASIS FOR THAT CLAIM; (ii) GRANTING RELIEF FROM THE DISCOVERY CUTOFF TO CONDUCT THAT DEPOSITION [Local Rule 37-2 Joint Stipulation filed separately under seal] filed by plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. Motion set for hearing on 7/25/2014 at 09:30 AM before Magistrate Judge Michael R. Wilner. (Attachments: # 1 Declaration Betsy C. Manifold In Support of Motion for Order Overruling Privilege, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Proposed Order Plaintiffs, # 15 Proposed Order Defendants)(Manifold, Betsy)

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FRANCIS M. GREGOREK (144785)
[e-mail]
BETSY C. MANIFOLD (182450)
[e-mail]
RACHELE R. RICKERT (190634)
[e-mail]
MARISA C. LIVESAY (223247)
[e-mail]
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

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Interim Lead Class Counsel for Plaintiffs and Proposed Class

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

Lead Case No. CV 13-04460-GHK (MRWx)
DECLARATION OF BETSY C.
MANIFOLD IN SUPPORT OF
PLAINTIFFS’ NOTICE OF MOTION
AND MOTION FOR ORDER: (i)
OVERRULING DEFENDANTS’ CLAIM
OF PRIVILEGE IN DOCUMENTS
PRODUCED BY A NON-PARTY, OR
PERMITTING A SECOND RULE
30(B)(6) DEPOSITION TO
DETERMINE THE FACTUAL BASIS
FOR THAT CLAIM; (ii) GRANTING
RELIEF FROM THE DISCOVERY
CUT-OFF TO CONDUCT THAT
DEPOSITION; (iii) AND [PROPOSED]
ORDER THEREON
Date:
Time:
Judge:
Room:

July 25, 2014
9:30 A.M.
Mag. Michael R. Wilner
H-9th Floor

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

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1.

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

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

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

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

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

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2.

I submit this declaration in support of the motion by plaintiffs Good

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Morning To You Productions Corp., Robert Siegel, Rupa Marya d/b/a Rupa & The

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April Fishes, and Majar Productions, LLC’s (“Plaintiffs’”) for an order: (i)

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overruling Defendants’ claim of privilege in documents produced by a non-party, or

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permitting a second rule 30(B)(6) deposition to determine the factual basis for that

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claim, (ii) granting relief from the discovery cut-off to conduct that deposition, and

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(iii) and [proposed] order thereon.

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Background

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3.

Plaintiffs commenced this now consolidated class action seeking, inter

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alia, a declaration, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-

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2202, that Defendants: (i) do not own any valid copyright to the world’s most

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popular song, Happy Birthday to You (the “Song”); (ii) that any copyright

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Defendants do own is limited in scope; and (iii) that the Song itself is in fact

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dedicated to public use and in the public domain (hereafter “Claim One”). See

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generally Pls.’ Fourth Amend. Consol. Class Action Compl. (Dkt. 95) (the “FAC”).

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4.

Pursuant to the Court’s suggestion and the parties’ subsequent

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agreement, Claim One of the FAC was bifurcated from the other claims and the

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scope of discovery is therefore limited to the issues raised by Claim One only. See

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Scheduling Order (Dkt. 92) annexed to the Joint Stipulation as Addendum A.
Discovery Served: Deposition Notices

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5.

On April 23, 2014, Plaintiffs served Plaintiffs’ Notice of Taking

Deposition of the Person Most Knowledgeable of Defendant Warner/Chappell

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Music, Inc. pursuant to Fed. R. Civ. P. 30(b)(6) upon counsel for Defendants at their

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Los Angeles and San Francisco offices. A true and correct copy of Plaintiffs’

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Notice of Taking Deposition of the Person Most Knowledgeable of Defendant

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Warner/Chappell Music, Inc. pursuant to Fed. R. Civ. P. 30(b)(6) is attached hereto

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as Exhibit 1.

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6.

On May 19, 2014, after conferring with Defendants, Plaintiffs served an

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Amended Notice of Taking Deposition of the Person Most Knowledgeable of

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Defendant Warner/Chappell Music, Inc.

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Amended Notice of Taking Deposition of the Person Most Knowledgeable of

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A true and correct copy of Plaintiff’s

Defendant Warner/Chappell Music, Inc. is attached as Exhibit 2.
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On May 22, 2014, Plaintiffs served Plaintiff’s Second Notice of Taking

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Deposition of the Person Most Knowledgeable of Defendant Warner/Chappell

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Music, Inc. pursuant to Fed. R. Civ. P. 30(b)(6) upon counsel for Defendants at their

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Los Angeles and San Francisco offices. A true and correct copy of Plaintiff’s

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Second Notice of Taking Deposition of the Person Most Knowledgeable of

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Defendant Warner/Chappell Music, Inc. pursuant to Fed. R. Civ. P. 30(b)(6) is

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attached hereto as Exhibit 5.

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8.

On May 27, 2014, Defendants served Defendant’s Objections to

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Plaintiff’s Amended Notice of Taking Deposition of the Person Most Knowledgeable

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of Defendant Warner/Chappell Music, Inc. A true and correct copy of Defendant’s

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Objections to Plaintiff’s Amended Notice of Taking Deposition of the Person Most

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Knowledgeable of Defendant Warner/Chappell Music, Inc. is attached as Exhibit 6.

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9.

Shortly after the deposition of Mr. Marcotullio, on June 5, 2014,

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Plaintiffs served Plaintiff’s Notice of Taking Deposition of Jeremy Blietz upon

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counsel for Defendants at their Los Angeles and San Francisco offices. A true and

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correct copy of Plaintiff’s Notice of Taking Deposition of the Jeremy Blietz is

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attached hereto as Exhibit 3.

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10.

Finally, on June 30, 2014, Defendants’ counsel, Melinda LeMoine,

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finally made Mr. Blietz available for deposition on July 10, 2014 in Los Angeles. A

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true and correct copy of the e-mail received by me on or about June 30, 2014 is

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attached here to as Exhibit 4.

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Defendants’ Privilege Logs

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Defendants produced its initial privilege log on May 9, 2014, a copy of

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which was filed with the Court as Exhibit A (Dkt. 101-2) to Plaintiffs’ previous

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discovery motion filed June 4, 2014 (Dkt. 101). Thereafter, Defendants amended

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their privilege log on June 2, 2014, which was filed with the Court as Exhibit B to

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the Declaration of Kelly Klaus in the parties’ prior L.R. 37-2 Joint Stipulation. See

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Dkt. 104. The Defendants then amended their privilege log on June 23, 2014 adding

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two additional documents. The supplement privileged provided on June 23, 2014 is

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attached hereto as Exhibit 7. No further amendments to the privilege log have been

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made by Defendants.

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ASCAP Motion to Quash

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12.

On June 4, 2014, Plaintiffs served a subpoena on ASCAP. On June 12,

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2014, ASCAP moved in the United States District Court for the Southern District of

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New York for an order pursuant to Fed. R. Civ. P. 45(d)(3) to quash the subpoena

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served on ASACP by Plaintiffs (“ASCAP Motion to Quash”). On June 19, 2014,

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Plaintiffs opposed the ASCAP Motion to Quash, to which ASCAP filed a Reply in

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further support of the Motion to Quash. A true and correct copy of the ASCAP

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Motion to Quash dated June 12, 2014 and the Reply Memorandum in Further

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Support of the ASCAP Motion to Quash dated June 26, 2014 are attached hereto as

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Exhibits 8 and 11, respectively (Dkts. 1 and 9 in S.D.N.Y. Misc Case No. 14-mc-

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00179) A true and correct copy of the Declaration of Richard H. Reimer (“Reimer

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Declaration”) filed in support of the ASCAP Motion to Quash (Dkt. 3), omitting all

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exhibits except for “Exhibit 2.” “Exhibit 2” to the Reimer Declaration attaches a true

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and correct copy of the Rule 45 subpoena received by ASCAP.

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13.

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

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appear for deposition for July 11, 2014. A true and correct copy of the letter to the

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Honorable Jed. S. Rakoff, United States District Judge, by ASCAP withdrawing the

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ASCAP Motion to Quash is attached hereto Exhibit 10.

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L.R. 37-1 PRE-FILING CONFERENCE OF COUNSEL – JUNE 16, 2014

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14.

On May 16, 2014, the parties held a teleconference to discuss the

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Plaintiffs’ Notices of Deposition. The parties also discussed at length Plaintiffs’

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position that further discovery was necessary and appropriate to develop a factual

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record in order to resolve Defendants’ claim of privilege with regard to the ASCAP

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Documents. As to the Plaintiffs Second Notice of Deposition under Rule 30(b)(6)

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(Ex. 5), Defendants refused to designate or produce a witness for the reasons set forth

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in their prior Objections and took the position that Plaintiffs were not entitled to any

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further discovery. See Ex. 6 hereto.

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OTHER EXHIBITS

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15.

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Exhibit 12: Page 1671, U.S. Copyright Office’s Catalog of Copyright Entries

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Attached hereto are true and correct copies of the following:

for New Musical Compositions and Renewal Registrations for the year 1962.
I declare under penalty of perjury that the foregoing is true and correct.

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Executed this 15th day of July 2014, in the City of San Diego, State of California.

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By:

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/s/ Betsy C. Manifold
BETSY C. MANIFOLD

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WARNER/CHAPPELL:20969.decl.bcm

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