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Live Nation Merchandise, Inc. v. Miller

United States District Court, N.D. California, San Francisco Division

May 9, 2014

STANLEY G. MILLER, and others, Defendants.


NATHANAEL M. COUSINS, Magistrate Judge.

Pending before the Court are two joint discovery letter briefs, Dkt. Nos. 46, 53, in which defendants and counter-claimants, Stanley Miller and the Alton Kelley and Marguerite Trousdale Kelley 1999 Trust ("Artists") seek to compel amended responses to document requests and further document production from plaintiff and counterclaim-defendant Live Nation Merchandise, Inc. ("Live Nation"). This order grants the motion to compel in part and orders further briefing on the issue of privilege.


On January 11, 2013, Live Nation filed a complaint against Artists asserting breach of contract in the San Francisco County Superior Court. Dkt. No. 1. Live Nation alleged that Artists breached a 2007 Agency/Merchandising Agreement concerning certain of Artists' artwork by, among other things, violating Live Nation's exclusive right to solicit licenses and refusing to provide accountings or make payments to Live Nation. Dkt. No. 1 at 11, 62-67. In response, Artists filed cross-complaints against Live Nation asserting federal copyright infringement under the Copyright Act, 17 U.S.C. § 501 et seq., and violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1202, among other claims, and on that basis removed this action to this Court. Dkt. Nos. 1 at 1-5; 1-3 at 10-71. Artists also contend that Live Nation breached the Agency/Merchandising Agreement by, among other matters, failing to provide proper accountings to Artists, and manufacturing, marketing, selling, licensing and/or distributing merchandise bearing Artists' artwork, names, identities, and/or trademarks without seeking or receiving any approval. Dkt. No. 1-3 at 10-71. The case was referred for all discovery to the undersigned Magistrate Judge. Dkt. No. 44.

On April 22, 2014, the parties filed a joint letter brief in which Artists seek to compel Live Nation to produce (1) an unredacted copy of a settlement agreement between Live Nation and its former CEO, Dell Furano; and (2) "all documents responsive to the financial interests in this lawsuit (Request Nos. 100-110)." Dkt. No. 46 at 4. Artists contend that the settlement agreement assigns the entirety of the breach of contract claim asserted by Live Nation in this litigation against Artists, and that the documents sought are relevant to the determination of the real party in interest and the financial interests in this litigation. Id. at 2-3. Live Nation opposed Artists' request on the grounds that it has already produced the relevant portions of the settlement agreement and that the remaining portions are irrelevant to this litigation and involve privacy interests of Live Nation and non-parties. Id. at 4-6. Live Nation further indicated that it intended to amend its discovery responses. Id. at 6.

This Court subsequently ordered the parties to meet and confer regarding the sufficiency of the amended responses. Dkt. No. 49. Live Nation filed amended responses to Artists' document requests Nos. 100-104, 106-110 on April 30, 2014, and a further amendment on May 5, 2014. Dkt. Nos. 51, 52. After meeting and conferring, the parties filed a joint letter brief in which Artists contend that Live Nation's amended responses remain insufficient and seek to compel further responses and document production. Dkt. No. 53. In addition, as ordered by this Court, Live Nation submitted an unredacted copy of the settlement agreement at issue to the Court for in-camera review. The Court held a hearing to address the pending discovery issues on May 7, 2014.


In general, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Furthermore, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id. Information is relevant for discovery purposes if it "appears reasonably calculated to lead to the discovery of admissible evidence." Id. However, even when the information sought by the parties in a civil lawsuit is relevant, the Court must limit the scope of discovery if it determines that (1) "the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive"; (2) "the party seeking discovery has had ample opportunity to obtain the information by discovery in the action"; or (3) "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(C). In other words, the Court seeks to "strike[] the proper balance between permitting relevant discovery and limiting the scope and burdens of the discovery to what is proportional to the case." Kaiser v. BMW of N. Am., LLC, No. 12-cv-01311 DMR, 2013 WL 1856578, at *3 (N.D. Cal. May 2, 2013).


Artists contend that the amended responses to Requests Nos. 100 and 103-110 remain deficient for several reasons, which the Court addresses in turn.

1. Privilege

First, Artists assert that Live Nation has improperly withheld responsive documents on the basis of attorney client privilege and/or work product. Dkt. No. 53 at 2-3. Live Nation contends that the privilege applies both because Furano was responsible for handling matters involving Artists while he was employed by Live Nation as CEO/president, and because Live Nation's counsel jointly represents Furano and Live Nation. Id. at 4. In response, Artists dispute whether the communications at issue concern matters within the scope of Furano's corporate duties, and whether the requisite joint interest exists between Live Nation and Furano. Id. at 3. Finally, the parties disagree about whether privileged communications post-dating the filing of this action need to be logged. Id. at 3-4.

Having considered the parties' joint letter brief and arguments at the hearing, the Court finds that the privilege issues raised warrant further briefing. By May 14, 2014, Live Nation must file a further brief regarding the privilege issues, attaching a copy of its privilege log. Artists have until May 21, 2014, to file a response. The supplemental briefs are limited to 5 pages each. The matter is set for further ...

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