James v. UMG Recordings, Inc.

Filing 174

Discovery Order re: 173 Discovery Letter Brief filed by Rick James. Signed by Judge Maria-Elena James on 11/8/2013. (cdnS, COURT STAFF) (Filed on 11/8/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICK JAMES, et al.,

Case No. 11-cv-01613-SI (MEJ)

Plaintiffs,
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v.

DISCOVERY ORDER

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UMG RECORDINGS, INC.,

Re: Dkt. No. 173

United States District Court
Northern District of California

Defendant.
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BACKGROUND

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This is a consolidated putative class action for breach of contract, breach of the covenant of

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good faith and fair dealing, and statutory violations of various state laws against defendant, UMG

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Recordings, Inc., and its affiliated and subsidiary entities (“UMGR”) filed by plaintiff recording

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artists and producers (“Plaintiffs’), who allege that UMGR underpaid licensing royalties on digital

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downloads of Plaintiffs’ recordings.

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The current dispute concerns Plaintiffs’ motion to compel responses to Request for

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Production (“RFP”) Nos. 73 and 76, which seek all documents demonstrating UMGR’s

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interpretation and input into its royalty system of the named plaintiffs’ contract terms and data

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regarding the revenue received by UMGR, as well as calculation of royalties for downloads of the

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named plaintiffs’ recordings from 1999 to the present. Dkt. No. 173. UMGR opposes the motion,

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arguing that the document requests violate Federal Rule of Civil Procedure (“Rule”) 34(b)(1)(a)

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because they are overbroad. UMGR also opposes the motion on the grounds that: (1) production

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of documents evidencing electronic royalty statements or receipts for digital downloads would

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impermissibly require UMGR to create or prepare new documents; and (2) any “royalty briefs”

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that might exist are privileged.
DISCUSSION

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A.

Federal Rule of Civil Procedure 34(b)(1)(a)
UMGR first argues that Plaintiffs’ motion to compel is inherently deficient because RFP

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Nos. 73 and 76 demand that UMGR produce each and every document “relating to” or

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“regarding” any of the Plaintiffs, and as such violate Rule 34(b)(1)(a), which provides that such

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requests “must describe with reasonable particularity each item or category of items to be

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inspected.” Rule 26(b) requires that information sought through discovery be relevant to the

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claims and defense in the action and be “reasonably calculated to lead to admissible evidence.”
Applying these principles, the Court finds the requests are overbroad because they fail to comply

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United States District Court
Northern District of California

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with the particularity requirement of Rule 34. The requests’ expansive sweep includes documents

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that would not be directly relevant to Plaintiffs’ claims and would place an undue burden upon

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Defendant to produce. 2011 WL 3740853, at *4 (N.D. Cal. Aug. 25, 2011).

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However, the deficiencies in the original request are not fatal to Plaintiffs’ motion because

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Plaintiffs aver that they have, via the meet and confer process, limited the scope of the RFPs to the

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categories of data set forth in the meet and confer letter, and that they “will not ask for further data

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or documents on the basis of these requests,” reserving only the right to request further responses

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to material UMGR has already agreed to produce in response to Category 4, “Contract

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Identification Info.” Dkt. 173 at 1, fn 1. Accordingly, the Court finds that Plaintiffs need not

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propound a new set of RFPs. As discussed below, the Court DENIES the motion to compel in

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part and orders the parties to meet and confer further.

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B.

Request for Production No. 73

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This RFP seeks three categories of documents, which the Court will discuss in turn.

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1. Electronic Versions of the Royalty Statements

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Plaintiffs seek production of the royalty statements previously produced by UMGR in

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electronic format dating from 2003 to the present. Plaintiffs assert that UMGR has offered to

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produce “Excel-formatted statements” for 2009 to 2012, but will not confirm that electronically

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stored statements are available dating back to 2003. Jt. Ltr. at 2. This information, they contend,
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can be “downloaded as plaintiffs have requested with relative ease.” Id. Plaintiffs seek an order

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requiring UMGR to produce the 2009 to 2012 statements, and provide “written confirmation” that

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such data is available “back to 2003 -- or a later date if applicable.” Id.

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Contrary to Plaintiffs’ representations, UMGR does not confirm that it agreed to produce

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any of the requested documents in electronic format. Instead, UMGR contends that having twice

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produced the documents, it should not be required to produce the documents a third time in

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electronic format. Id. at 5. UMGR argues that production of electronically formatted royalty

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statements would require creation of new documents not currently in existence, and would require

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“40 hours of employee time” to produce statements for the 2009 to 2012 period alone. Id. at 5 and

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United States District Court
Northern District of California

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fn 9.
Rule 26(f) requires parties to discuss the form that production of electronically stored

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information should take. Fed. R. Civ. P. 26(f)(3)(C). Rule 34 provides that “[i]f a request does

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not specify a form for producing electronically stored information, a party must produce it in a

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form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” and

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“[a] party need not produce the same electronically stored information in more than one form.”

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Fed. R. Civ. P. 34(b)(2)(E)(ii)-(iii).

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Plaintiffs originally requested that UMGR “produce electronically stored information in a

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form or forms in which it is ordinarily maintained or in a form or forms that are reasonably

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usable.” Jt. Ltr., Ex. A. Although Plaintiffs surely could foresee the need to manipulate the

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royalty data, they did not specify production in electronic form. Now Plaintiffs seek to compel

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electronic versions of the royalty statements UMGR has already twice produced, by arguing only

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generally that production in Excel format would be more convenient for their use. Id. at 2 (Excel

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format “would be far more usable for plaintiffs and any experts”); Id. at fn 2 (“to replicate the

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Excel-formatted statements would be far more burdensome for Plaintiffs”). Plaintiffs’ justification

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for their need for this information, as set forth in their motion, falls far short of the mark.

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Accordingly, the motion to compel is DENIED. The Court declines to compel UMGR to create

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new documents solely for this purpose.

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2. Evidence of Receipts for Digital Downloads

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Plaintiffs state that they require the receipts UMGR received from the download

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transactions with vendors like Apple/iTunes in order to calculate royalties under Plaintiffs’ theory

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of the case. Jt. Ltr. at 2-3. Plaintiffs state that they can extrapolate these receipts at class

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certification, but are concerned they will draw objections from UMGR. On the other hand,

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UMGR avers that they cannot produce this data because it would require the reprogramming of its

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royalty database, and creation of new software to extract the information Plaintiffs seek. Id. at 5-

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6. Plaintiffs state that they can discern this data by extrapolation, but seek the actual receipts data

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for verification in case UMGR objects to their methods. Id. at 3. Balancing UMGR’s
representation that production of the data would require extensive, costly software modifications,

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United States District Court
Northern District of California

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against Plaintiffs’ admission that they can extrapolate this data using materials they currently

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possess, the Court finds the burden far outweighs the usefulness of ordering production of the

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data. The parties may, however, meet and confer regarding the cost and timing required to extract

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the information. If Plaintiffs then wish to proceed with their request, they may do so at their own

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expense. Thus, the motion to compel is DENIED.

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3. Contract Identification Information

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UMGR has stated in its response to the pending motion that it will provide all available

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discovery material in response to this RFP by November 15, 2013. Accepting this statement, and

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absent any argument by Plaintiffs as to why the Court should compel an earlier production date,

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the motion to compel production of these documents prior to November 15, 2013 is DENIED.

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C.

Request for Production No. 76 (Royalty Briefs)

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Plaintiffs seek to compel production of UMGR’s internal instructions to royalty staff

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identifying the relevant royalty provisions in each contract for input into the tracking system.

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Plaintiffs argue that these one-page “royalty briefs” would “reveal, for each contract, how UMGR

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itself interpreted the [contract] terms, how they interact with each other, and their impact on

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royalties,” aiding their typicality analysis at class certification. Jt. Ltr. at 3 (emphasis in original).

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UMGR counters that such “royalty briefs” likely do not exist, as they were created for new

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contracts beginning in 2012, while Plaintiffs’ contracts, which were entered into between 1969
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and 1993 with UMGR’s predecessors, predated this policy change. Id. at 6. Moreover, UMGR

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did not create “royalty briefs” for pre-existing contracts. Id. (citing Rule 30(b)(6) testimony on

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this issue). Even if the briefs exist, UMGR contends they would be privileged. Id.

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UMGR’s arguments put the cart before the horse. The Court, not UMGR, will make the

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privilege determination if, and when, any responsive documents are produced. But here, UMGR

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has not unequivocally stated that there are no documents responsive to this request, nor have they

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searched for any such documents. If the Court credits Plaintiffs’ description of these documents,

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they would be highly relevant to the current litigation. However, if royalty briefs do not exist for

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Plaintiff’s contracts, there is no burden to UMGR. Thus, Court is thus not persuaded by UMGR’s
complaints that the search for such documents would be so burdensome as to excuse them from

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United States District Court
Northern District of California

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the task. Jt. Ltr. at 6 (such a search “would be a time-consuming undertaking of unknown

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duration”). The Court is unwilling to accept UMGR’s argument that royalty briefs “may not even

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exist;” UMGR must make this determination. Accordingly, the Court GRANTS Plaintiffs’

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request, to the extent that royalty briefs exist for Plaintiffs’ contracts.

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IT IS SO ORDERED.

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Dated: November 8, 2013
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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