Live Nation Merchandise, Inc v. Miller et al

Filing 83

ORDER by Judge Nathanael M. Cousins RE: DISCOVERY DISPUTES Dkt. Nos. 53, 56, 67, 68, 73, 74, 75, 77, 79, 80, 81 (nclc2, COURT STAFF) (Filed on 5/29/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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LIVE NATION MERCHANDISE, INC.,
Plaintiff,

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ORDER RE: DISCOVERY
DISPUTES

v.

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Case No. 13-cv-03936 CW (NC)

STANLEY G. MILLER, and others,

Re: Dkt. Nos. 53, 56, 67, 68, 73, 74,
75, 77, 79, 80, 81

Defendants.

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On May 28, 2014, the Court held a hearing to address several discovery disputes

18 presented by the parties. This order memorializes the Court’s rulings at the hearing.
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1.

Privilege Dispute

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Artists contend that Live Nation has improperly withheld responsive documents on

21 the basis of attorney-client and/or work product privilege, and move to compel the
22 production of those documents. Dkt. Nos. 53, 73. Specifically, Artists contend that Live
23 Nation has not met its burden of establishing attorney-client privilege for communications
24 dated after Live Nation’s assignment of the claim to Epic Rights, and after Furano’s
25 departure from Live Nation and before the assignment. Dkt. No. 73.
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The Court finds that Live Nation has adequately demonstrated that (1) the

27 communications at issue are protected by the attorney-client and work product privileges,
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Case No. 13-cv-03936 CW (NC)
ORDER RE: DISCOVERY DISPUTES

1 see United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010); Fed. R. Civ. P. 26(b)(3)(A);
2 (2) the attorney-client privilege extended to Furano before and after his departure from Live
3 Nation under Upjohn Co. v. United States, 449 U.S. 383, 394 (1981); see also Admiral Ins.
4 Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1493 (9th Cir. 1989); and (3)
5 the attorney-client privilege was not waived as a result of the joint representation of Furano
6 and Live Nation as they have a “common interest,” see In re Pac. Pictures Corp., 679 F.3d
7 1121, 1129 (9th Cir. 2012).
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The Court further finds that Live Nation’s privilege log sufficiently identifies and

9 describes the withheld documents to enable Artists to assess the applicability of the claimed
10 privilege. Finally, the Court finds that Live Nation is not required to log privileged
11 communications post-dating the filing of this action.
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Artists’ request to compel is DENIED.

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2.

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This Court previously stayed Live Nation’s deposition and document subpoena to

McNamee Subpoena

15 non-party Roger McNamee on the basis that Live Nation’s assertions about McNamee’s
16 relevance seem to be refuted by McNamee’s proffer about his role in this dispute and his
17 lack of knowledge on the significant issues. Dkt. No. 57. Having reviewed McNamee’s
18 declaration and considered the further submissions and arguments by McNamee and Live
19 Nation, the Court finds that the asserted relevance of the further discovery sought by Live
20 Nation is speculative and that the burden of providing it outweighs its likely benefit. Fed.
21 R. Civ. P. 26(b)(2)(C). Accordingly, the Court DENIES Live Nation’s request to compel
22 compliance with the deposition and document subpoena to McNamee.
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3.

Beatles, Woodstock, and Van Halen Discovery

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Artists seek to compel the production of documents from Live Nation regarding

25 licenses and merchandise deals related to the artwork and logos of the Beatles, Woodstock,
26 and Van Halen. Dkt. No. 81. The Court DENIES Artists’ request to compel the Beatles
27 discovery on the basis that the requests are not reasonably calculated to lead to the
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Case No. 13-cv-03936 CW (NC)
ORDER RE: DISCOVERY DISPUTES

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ry
nce,
R
6(b)(1), and that the bu
d
urden of pro
oducing
1 discover of admissible eviden Fed. R. Civ. P. 26
covery outw
weighs its lik benefit, Fed. R. C P. 26(b
kely
Civ.
b)(2)(C).
2 this disc

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tock and Van Halen co
Th Court further finds that docum
he
t
ments related to Woodst
d
ould be

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ably
ted
t
overy of adm
missible ev
vidence, and that
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4 relevant or reasona calculat to lead to the disco
ation’s objec
ctions based on confid
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dentiality an privacy a adequately address by
nd
are
sed
5 Live Na
ective order in this cas Howeve the partie must me and conf further a
r
se.
er,
es
eet
fer
about
6 the prote
ropriate scope of this discovery. By June 2, 2
d
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2014, the p
parties must file either a
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7 the appr
ion
iscovery has been agre upon, or separate, d
eed
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detailed pro
oposed
8 stipulati identifying what di
etting forth each side’s proposal as to the app
h
s
a
propriate sc
cope of disc
covery on th
his
9 orders se
ctions by Woodstock and Van Hal must be filed by Ju 2, 2014
W
a
len
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une
4.
10 subject. Any objec
0

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An party ma object to this non-d
ny
ay
o
dispositive d
discovery or
rder within 14 days un
n
nder

vil
re
12 Federal Rule of Civ Procedur 72(a).
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T
RDERED.
IT IS SO OR

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Date: May 29 2014
9,

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____
__________
__________
_____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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Case No. 13-cv-0393 CW (NC)
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)
ORDER RE: DISCO
R
OVERY DIS
SPUTES

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