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)

1
2
3
4

6
7
8

FRANCIS M. GREGOREK (144785)
regorek(Z)whath.corn
IETSY C MANIFOLD (182450)
manifo1d(Ziwhath.corn
RACHELE R. RICKERT (190634)
rickert(whafli corn
MARISA C. LIVESAY (223247)
1ivesay(whaffi.corn
WOIJFIIALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: [phone]
Facsimile: 619/234-4599

Interim Lead Counsel for Plaintiffs and the [ProposedJ Class
10
11
12
13
14

1

17

18
19

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
Lead Case No. CV 13-04460-GHK (MRWx)
GOOD MORNING TO YOU
PRODUCTIONS CORP., et al.,
[PROPOSED1 ORDER GRANTING
Plaintiffs,
PLAINTIFFS’ APPLICATION UNDER
LOCAL RULE 37-2 FOR AN ORDER:
v.
(i) OVERRULING DEFENDANTS’
CLAIM OF PRIVILEGE IN
WARNER/CHAPPELL MUSIC,
DOCUMENTS PRODUCED BY A NONINC., et al.,
PARTY, OR PERMITTING A SECOND
RULE 30(B)(6) DEPOSITION TO
Defendants.
DETERMIM THE FACTUAL BASIS
FOR THAT CLAIM; AND (ii)
GRANTING RELIEF FROM THE
DISCOVERY CUT-OFF TO CONDUCT
THAT DEPOSITION

20
21
22

23
24
25
26
27
28

Date:
July 25, 2014
Time:
9:30 a.m.
Judge:
Hon. Michael R. Wilner
Room:
H-9th Floor
Disc. Cutoff:
July 11, 2014
Pretrial Conf.:
N/A
Trial Date:
N/A
L/D File Jt. MSJ: 11/14/14

1

HAVING FOUND GOOD CAUSE APPEARING in Plaintiffs’, Good

2

Morning To You Productions Corp., Robert Siegel, Rupa Marya, and Majar

3

Productions, LLC (“Plaintiffs”) application under Local Rule 37-2 brought under

4 Fed. R. Civ. P. 26(b)(5)(B) for an order: (i) overruling the claim of privilege by
Warner/Chappeli Music, Inc. and Summy-Birchard, Inc.
5 defendants
6 (“Defendants”), to certain documents produced by non-party American Society of
7 Composers, Authors and Publishers (“ASCAP”), or, in the alternative, permitting a
8 Fed. R. Civ. P. 30(b)(6) deposition to determine the factual basis for the claimed
9 privilege to be hilly briefed and heard by Magistrate Judge Michael R. Wilner

io

(“the Motion”). The Court makes the following findings:
Findin2s of Fact and Conclusions of Law

11

12

1.

(Dkt. 92);

13
14

The Court initially set the fact discovery deadline for June 27, 2014.

2.

On June 9, 2014, the fact discovery deadline was extended by this

15

Court, and at the request of both parties, to July 11, 2014 in order to

16

successfully resolve an outstanding discovery dispute relating to

17

Defendants’ privilege log;

18

3.

efforts to complete discovery prior to July 11, 2014;

19
20

Plaintiffs were diligent in their discovery and have made substantial

4.

Plaintiffs served a document subpoena on ASCAP on March 28,

21

2014; and the parties received the ASCAP Documents on May 9,

22

2014. On May 22, 2014, for the first time, ASCAP advised Plaintiffs

23

that Defendants claimed certain of the ASCAP Documents were

24

privileged and that counsel for the Defendants would be contacting

25

Plaintiffs directly;

26
27
28

-1-

1

5.

As required under Fed. R. Civ. P. 26(b)(5)(B), copies of the disputed

2

ASCAP Documents were sequestered by Plaintiffs’ counsel and were

3

submitted to the Magistrate Judge under seal for a determination of

4

Defendants’ claim of privilege;

5

6.

On May 22, 2014, Plaintiffs promptly noticed the deposition of

6

Defendants pursuant to Fed. R. Civ. P. 30(b)(6) for the corporation’s

7

testimony about the extent of ASCAP’s interest (if any) in the Song

8

and the royalties it collects for public performances of the Song and

9

whether

ASCAP

produced

the

documents

knowingly

and

10

intentionally. On May 27, 2014, Defendants objected to Fed. R. Civ.

11

P. 30(b)(6) deposition and declined to produce a witness;

12

7.

Plaintiffs also subpoenaed ASCAP under Fed. R. Civ. P. 45 and

13

30(b)(6) for the deposition of a representative of ASCAP most

14

knowledgeable about the scope or validity of any copyright to Song

15

and other related issues but AS CAP moved to quash the subpoena.

16

ASCAP and Plaintiffs then resolved the dispute and ASCAP

17

withdrew its motion to quash;

18

8.

was continued thereafter for additional questioning;

19
20

ASCAP’s deposition took place in New York on July 11, 2014 and

9.

On July 9, 2014, the Court granted Plaintiffs’ Ex Farte Application to

21

extend the discovery deadline to resolve this evidentiary dispute

22

relating to Defendants’ privilege claims as to certain ASCAP

23

Documents;

24

10.

Leave of court is warranted to permit a Second Rule 30(b)(6)

25

Deposition on the limited grounds set forth in Plaintiffs’ Noticed

26

Deposition relating to the circumstances of Defendants’ claim of

27

privilege in certain ASCAP Documents;

28

11.

The Court has reviewed the AS CAP Documents at issue in camera as
provided by Fed. R. Civ. P. 26(b)(5)(B); and
-2-

1

12.

The Court hereby concludes that Defendants’ production of these

2

documents to a third party, ASCAP, waived Defendants’ claim of

3

privilege as to the documents reviewed by the Court.
ORDER

4
5
6

THEREFORE, based upon the foregoing Findings of Fact and Conclusions
of Law, Plaintiffs’ Ex Parte Application is hereby GRANTED, as follows:

7
8

1.

notices, meeting and conferring with Defendants and ASCAP, and filing

9

its motion to challenge Defendants’ designation of the ASCAP

10

Documents as privileged.

11
12
13

2.

There is no prejudice to Defendants in having this motion heard now.

3.

The discovery cut-off has been extended for the purpose of this
evidentiary challenge.

14
15

4.

production of these documents to a third party, ASCAP.

17

19

The Court having reviewed the ASCAP Documents at issue in camera
concludes that Defendants waived their claim of privilege by

6
18

Plaintiffs acted diligently in serving its discovery requests and deposition

IN THE ALTERNATIVE:
[4.

Plaintiffs are granted leave of Court to take a Second Rule 30(b)(6)

20

deposition limited to the factual basis for their claim of privilege as set

21

forth in Plaintiffs’ Notice of Deposition.]

22
23
24
25
26
27
28

-3-

__________________________________

1

[5.

Upon completion of the deposition, the parties shall have seven days to

2

file a five page Supplemental Memorandum. Once filed, the Court will

3

consider the issue fully briefed and will issue an order.]

4
IT IS SO ORDERED.

6

Dated:_____________________
HON. MICHAEL R. WILNER,
MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
WARNERICI-IAPPELL:21007.ORDER
28

-4-