Rupa Marya v. Warner Chappell Music Inc

Filing 145

NOTICE OF MOTION AND MOTION for Review of [REDACTED] MOTION FOR REVIEW OF MAGISTRATE JUDGE WILNERS ORDER RE: DISCOVERY MOTION DENYING PLAINTIFFS MOTION TO OVERRULE DEFENDANTS CLAIM OF ATTORNEY-CLIENT PRIVILEGE [FED. R. CIV. P. 72(a); L.R. 72-2.1] filed by plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. Motion set for hearing on 9/15/2014 at 09:30 AM before Judge George H. King. (Attachments: # 1 Addendum A, # 2 Proposed Order GRANTING PLAINTIFFS MOTION FOR REVIEW OF MAGISTRATE JUDGE WILNERS ORDER RE: DISCOVERY MOTION DENYING PLAINTIFFS MOTION TO OVERRULE DEFENDANTS CLAIM OF ATTORNEY-CLIENT PRIVILEGE AND PLAINTIFFS APPLICATION TO FILE CERTAIN DOCUMENTS UNDER SEAL [FED. R. CIV. P. 72(a); L.R. 72-2.1])(Manifold, Betsy)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
GOOD MORNING TO YOU
) Lead Case No. CV 13-04460-GHK (MRWx)
PRODUCTIONS CORP., et al.,
)
) [PROPOSED] ORDER GRANTING
Plaintiffs,
)
) PLAINTIFFS’ MOTION FOR REVIEW
v.
) OF MAGISTRATE JUDGE WILNER’S
) ORDER RE: DISCOVERY MOTION
WARNER/CHAPPELL MUSIC, )
INC., et al.,
) DENYING PLAINTIFFS’ MOTION TO
) OVERRULE DEFENDANTS’ CLAIM
Defendants.
) OF ATTORNEY-CLIENT PRIVILEGE
)
) AND PLAINTIFFS’ APPLICATION TO
) FILE CERTAIN DOCUMENTS UNDER
) SEAL [FED. R. CIV. P. 72(a); L.R. 72-2.1]
)
)
)
)
)
)
) Date:
September 15, 2014
)
9:30 A.M.
) Time:
) Judge:
Hon. George H. King
) Room:
)
July 11, 2014
) Disc. Cutoff:
) Pretrial Conf.:
N/A
) Trial Date:
N/A
)
) L/D File Jt. MSJ: 11/14/14
)

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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 pursuant to Federal Rule of Civil
4 Procedure 72(a) and Local Rule (“L.R.”) 72-2.1, for review of the Order re:
5 Discovery Motion (“Order”) of Magistrate Judge Michael R. Wilner filed on July
6 25, 2014 (Dkt. 132), denying Plaintiffs’ motion to overrule the claim of attorney7 client privilege by Defendants Warner/Chappell Music, Inc. and Summy-Birchard,
8 Inc., in certain documents produced by non-party American Society of Composers,
9 Artists, and Publishers (“ASCAP”). The Court makes the following findings:
Findings of Fact and Conclusions of Law

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1.

Plaintiffs served a document subpoena on ASCAP on March 28,

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

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

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that Defendants claimed certain of the ASCAP Documents were

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privileged and that counsel for the Defendants would be contacting

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Plaintiffs directly;

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2.

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

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ASCAP Documents were sequestered by Plaintiffs’ counsel and were

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submitted to the Magistrate Judge under seal for a determination of

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Defendants’ claim of privilege;

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3.

On July 9, 2014, Magistrate Judge Wilner granted Plaintiffs’ Ex Parte

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Application to extend the discovery deadline to resolve this

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evidentiary dispute relating to Defendants’ privilege claims as to

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certain ASCAP Documents;

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4.

On July 22, 2014, the parties completed their briefing on the

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Discovery Motion. Magistrate Judge Wilner heard the dispute on an

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expedited basis and held oral argument on July 25, 2014. The Order
was filed on the same day.

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5.

On July 29, 2014, the Magistrate Judge sealed the Confidential
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Declaration of Mark C. Rifkin submitted in support of Plaintiffs’

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Discovery Motion. Dkt. 137. Certain of these same exhibit were

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submitted and discussed in Plaintiffs’ Motion for Review.

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6.

On July 28, 2014, written notice of the Order was provided to the

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parties (Dkt. 132) and Plaintiffs filed this Motion for Review within

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14 days as provided by L.R. 72-2.1. Plaintiffs’ Motion for Review is

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timely.

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Pursuant to Local Rule 72.2-1, Plaintiffs identified the following
portions of the Order for review by the Court:

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The Court finds sufficient evidence to support Warner’s

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argument that Summy gave the Coudert materials to ASCAP’s

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lawyer for the purpose of obtaining legal advice. [United States

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v.] ASCAP, 129 F. Supp. 2d [327,] 338 [(S.D.N.Y. 2001)]. Proof

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that Summy owned a legitimate copyright was fundamental to

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allowing the association to provide a fundamental service –

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enforcing and patrolling its members’ legal interest. The fact that

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one of Summy’s principals sent the Coudert materials directly to

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the general counsel of a major rights enforcement agency fits

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well within the established perspective that “[e]ach individual

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member of the [unincorporated] association is a client of the

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association’s lawyer.” Schwartz [v. Broadcast Music], 16 F.R.D.

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[16 F.R.D. 31,] 32 [(S.D.N.Y. 2954)]. If ASCAP’s general

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counsel acted as Summy’s lawyer to obtain material relevant to

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preparing future copyright infringement actions (even if such

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actions didn’t come to pass), then the client’s action in conveying

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privileged materials did not cause a waiver of the privilege.

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The Court also finds the evidence sufficient to establish that
Summy and ASCAP engaged in communication in furtherance
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of a common interest. As Summy’s agent, ASCAP was

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contractually obliged to sue copyright infringers on behalf of

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Summy. The transmission of material central to an infringement

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action enabled the rights holder and its agent to pursue their

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common interest in halting such infringement. Nidec [v. Corp. v.

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Victor Co. of Japan], 249 F.R.D. [575,] 578 [(N.D. Cal. 2007)].

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Plaintiff correctly notes that ASCAP did not stand to benefit

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directly from a successful copyright infringement action, as the

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association did not own the song’s copyright or share

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meaningfully in royalties derived from its public performances.

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Yet, this merely establishes that ASCAP did not have a joint

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commercial goal with Summy, which would be a factor against

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finding a commonality of interest here. [Bank of America, N.A.

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v.] Terra Nova, 211 F. Supp. 2d [493,] 497 [(S.D.N.Y. 2002)].

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Rather, the rights owner and the non-profit association were

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unified in asserting Summy’s copyrights for Summy’s benefit as

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a result of the agency relationship. [In re Fresh and Process]

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Potatoes] Antitrust Litig., 2014 WL 2435581 at *6-7 [(D. Idaho

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May 20, 2014)]. That common interest is adequate to warrant

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protecting privileged communications in advance of future

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conceivable litigation.

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Order, Dkt. 132 at 7-8 of 9.
7.

The standard of review from a magistrate judge’s order on a non-

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dispositive matter (such as this one) is well-established. “A district

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court will not modify or set aside a magistrate judge’s order unless it is

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‘found to be clearly erroneous or contrary to law.’ . . . The clearly

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erroneous standard applies to the magistrate judge’s factual findings

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while the contrary to law standard applies to the magistrate judge’s
legal conclusions, which are reviewed de novo.” Columbia Pictures,
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Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007) (citing Fed. R.

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Civ. P. 72(a)).

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8.

This deferential standard applies to discovery orders pertaining to the

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attorney-client privilege. See McAdam v. State Nat. Ins. Co., Inc., 12-

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CV-1333 BTM-MDD, 2014 WL 1614515 (S.D. Cal. Mar. 21, 2014);

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see also Fay Ave. Properties, LLC v. Travelers Prop. Cas. Co. of Am.,

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3:11-CV-02389-GPC, 2014 WL 2738682 (S.D. Cal. June 17, 2014).

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9.

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Under the aforesaid standard, the Court has reviewed the factual
findings and legal conclusions in the Magistrate Judge’s Order.

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The Court hereby grants Plaintiffs’ Motion for Review and concludes

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that Defendants’ production of these documents to a third party,

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ASCAP, waived Defendants’ claim of privilege as to the documents

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reviewed by the Court.
ORDER

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THEREFORE, based upon the foregoing Findings of Fact and Conclusions
of Law, Plaintiffs’ Motion for Review is hereby GRANTED, as follows:

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The Court having reviewed the ASCAP Documents at issue in camera

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concludes that Defendants waived their claim of privilege by production of these

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documents to a third party, ASCAP.

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The Court grants Plaintiffs’ Application to file certain documents under seal.

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IT IS SO ORDERED.

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Dated:

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______________________________________
HON. GEORGE H. KING
UNITED STATES DISTRICT COURT JUDGE

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W ARNER/CHAPPELL:21076..ORDER

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