Rupa Marya v. Warner Chappell Music Inc

Filing 146

DECLARATION of MARK C. RIFKIN in support of 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] 145 [REDACTED] filed by Plaintiffs Good Morning to You Productions Corp, Majar Productions LLC, Rupa Marya, Robert Siegel. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Manifold, Betsy)

EXHIBIT K

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
14 MISC 00179

InRe:

GOOD MORNTNG TO YOU
PRODUCTIONS CORP.; ROBERT
SIEGEL; RUPA MARYA; and
MAJAR PRODUCTIONS, LLC,
On Behalf of Themselves and All
Others Similarly Situated,

No.
Subpoena issued in
CASE NO: 2:13-cv-04460-GHK-MRW
(United States District Court for the
Central District of California)

Plaintiffs,
V.

WARNERICHAPPELL MUSIC, INC.;
and SUMMY-BIRCFIARD, INC.,
Defendants.

DECLARATION OF RICHARD H. REIMER
1, Richard H. Reimer, declare as follows:
1.

I am Senior Vice President, Legal Services for the American Societ
y of

Composers, Authors and Publishers (“ASCAP”), and have worked
at ASCAP as an
attorney since 1971 in various positions. I submit this declaration in suppor
t of ASCAP’s
motion to quash the subpoena served on non-party ASCAP by plaintiffs
in the abovecaptioned litigation pending in the United States District Court for
the District of
California (the “California Action”).
2.

I make this declaration based upon personal knowledge, the files
and

documents of ASCAP that I have reviewed, and information
supplied to me by
employees of ASCAP whom I believe to be reliable.
The California Action

3.

In the California Action, plaintiffs, a putative class of music users, seek
a

declaration that defendants Warner/Chappell Music, Inc. and Summy-Bire
hard, Inc. do

Case 1:14-mc-00179-P1

Document 3

Piled 06112114

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not own the copyright to the song “Happy Birthday to You,” and that the
song is in the
public domain.

A true and correct copy of the operative complaint in the California

Action is attached hereto as Exhibit 1,
4.

On June 4, 2014, plaintiffs in the California Action served ASCAP
with a

deposition subpoena pursuant to Rule 45 of the Federal Rules of Civil
Procedure. A true
and correct copy of plaintiffs’ subpoena is attached hereto as Exhibit
2.
ASCAP
5.

Founded in 1914, ASCAP is a voluntary membership association
that

represents more than 500,000 composers, songwriters, lyricists and music
publishers, and
licenses on a non-exclusive basis the public performance rights in the musica
l works
owned or administered by its members—including the song “Happy Birthd
ay to You,”
ASCAP operates on a non-profit-making basis, distributing all license fees
collected, less
operating expenses, as royalties to its songwriter, composer and music
publisher
members whose works are publicly performed. ASCAP does not have
any ownership
interest in any of the musical works it licenses on behalf of its membe
rs, nor does it have
any interest in the fees or royalties it collects on behalf of its membe
rs.

The Privilege Dispute
6.

The plaintiffs’ subpoena served on ASCAP on April 4, 2014 contain
ed 21

separate document requests. In response to that subpoena, ASCAP
produced, to both
plaintiffs’ and defendants’ counsel, approximately 500 documents,
including all of its
non-privileged files and records concerning “Happy Birthday to You.”
Included in the
documents produced by ASCAP were communications from the
1970s between
defendant Summy-Birchard and its then-counsel, Coudert Brothe
rs, and related
correspondence (the “Documents’”).

After ASCAP produced those communications,

Case 1:14-mc-00179-P1 Document 3 Filed 06112/14 Page
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defendants’ counsel informed ASCAP that defendants cons
ider the Documents to he
privileged. ASCAP immediately advised plaintiffs of defe
ndants’ claim of privilege.
7.

Plaintiffs challenged defendants’ claim of privilege and,
on May 22, 2014,

served a Rule 30(bX6) deposition notice on defendants conc
erning the privilege claim. A
true and correct copy of plaintiffs’ Rule 30(b)(6) depo
sition notice to defendants is
attached hereto as Exhibit 3.
8.

By letter dated June 2, 2014, defendants objected to the
deposition notice

as outside the scope of permissible discovery, and refus
ed to provide a witness to testit’

in response to the deposition notice. A true and correct copy
of defendants’ June 2, 2014
letter to plaintiffs is attached hereto as Exhibit 4.
9.

Thereafter, on June 4, 2014, plaintiffs served a seco
nd subpoena on

ASCAP, seeking testimony—five days later, on June 9, 204—
concerning the very same

30(h)(6) deposition topics objected to by defendants. As
plaintiffs acknowledged in a
letter sent to defendants on June 5, 2014 (the day after
plaintiffs served the present
subpoena on ASCAP), plaintiffs seek the depositio
n of an ASCAP representative
“[b]ecause Warner Chappell has refused to provide any
information about its relationship
with ASCAP.” A true and correct copy of plaintiffs’ June
5, 2014 letter to defendants is
attached hereto as Exhibit 5.
The SubDoena

10.

Plaintiffs’ subpoena seeks testimony relating to even
ts that largely

occurred 40 years ago, and there is no one at ASCAP who
had any involvement in, or is
otherwise capable of testifying about, those events.
11.

Any and all information that ASCAP has as to topics 1,
3, 4, 5, 6, 7, 8, 9,

10 and Ii in the subpoena is clearly and unambiguousl
y set forth on the face of the

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documents previously produced, and any depo
sition testimony by an ASCAP witness as
to those same facts would be redundant.
12.

Finally, since I was responsible for collecting
, reviewing, selecting and
producing documents on behalf of ASCAP in
response to plaintiffs’ previous document
subpoena, topic 2, which seeks testimony
concerning “ASCAP’s collection, review,
selection, and production of the Documents,”
would require me to testify as to my mental
impressions in selecting and reviewing the
documents produced by ASCAP in the
California Action.

Pursuant to 28 U.S.C.

§ 1746, 1 declare under penalty of perjury that the

foregoing is true and correct.

Executed this 6th day of June, 2014 in New York
, New York.

RICHARD H. REIMER

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