Complete Entertainment Resources LLC v. Live Nation Entertainment, Inc., et al Case No. CV 15-9814-DSF (AGRx) United States District Court, C.D. California Filed November 10, 2016 Counsel Frederick A. Lorig, Viola Trebicka, Lee Jeffrey Rosenberg, Kevin Y. Teruya, Jennifer D. English, Adam B. Wolfson, Quinn Emanuel Urquhart and Sullivan LLP, Los Angeles, CA, Zachary Christian Flood, Quinn Emanuel Urquhart and Sullivan LLP, San Francisco, CA, John M. Robinson, Pro Hac Vice, Quinn Emanuel Urquhart and Sullivan LLP, Chicago, IL, David Kramer, Los Angeles, CA, William Michael Odom, The Vora Law Firm, P.C., Santa Monica, CA, for Complete Entertainment Resources LLC. Timothy L. O'Mara, Ronald James Fisher, Robert James Ellison, Daniel Scott Schecter, Latham and Watkins LLP, Los Angeles, CA, Stephanie Grace, Latham and Watkins LLP, New York, NY, William M. Friedman, Pro Hac Vice, Latham and Watkins LLP, Washington, DC, Daniel M. Wall, Latham and Watkins LLP, San Francisco, CA, Andrew Michael Gass, Benjamin C. Pulliam, Kirsten M. Ferguson, Mark J. Seifert, Seifert Law Firm, San Francisco, CA, for Defendants Live Nation Entertainment, Inc., Ticketmaster LLC. Rosenberg, Alicia G., United States Magistrate Judge Proceedings: (In Chambers) PLAINTIFF'S MOTION TO COMPEL *1 On October 5, 2016, Plaintiff Complete Entertainment Resources LLC (“Songkick”)[1] filed a motion to compel further responses to discovery. (Dkt. No. 91; see Dkt. Nos. 88-90, 92, 95-96.) Defendants Live Nation Entertainment, Inc. (“Live Nation”) and Ticketmaster LLC filed an opposition. (Dkt. Nos. 101-11.) Songkick filed a reply. (Dkt. Nos. 114-18.) The matter came on for hearing before the court on November 8, 2016. A. Forensic Search Songkick requests that the court order a forensic search, or alternatively a forensic image, by a neutral expert for the following six custodians during the period February 2014 through December 2015: Greg Schmale (VP, Ticketmaster Artist Services Division); Michael Rapino (CEO, Live Nation); Cole Gahagan (CFO, Ticketmaster); Jared Smith (President, Ticketmaster); Richard Palmese (Manager, Ticketmaster Artist Relations); and Carrie Phillips Trimble (Client Development Director, Ticketmaster). Greg Schmale left in August 2014. According to the Chow declaration, Defendants wipe clean or otherwise dispose of the hard drive of an employee who leaves the company. If the computer was wiped clean, it could be transferred to another employee. However, Defendants did not track such transfers until sometime in 2015. (Chow Decl. ¶¶ 6-7.) Defendants do not know what happened to Schmale's computer when he left. (Id. ¶ 8.) Sometime in 2015, Live Nation migrated to a cloud email system. The migration process took 7-9 months. Only current employees' emails and data migrated. (Id. ¶ 4.) Schmale's emails would not be on the cloud because he left before the migration. (Id. ¶ 9.) At oral argument, the parties informed the court that Songkick had served a subpoena upon Schmale and that Schmale, who is represented by counsel, possesses responsive information. Counsel are in the process of arranging the review and production of responsive nonprivileged information. In the event of a discovery dispute, counsel may contact the Court Clerk, Marine Pogosyan, and request a telephonic or in-person hearing with the Court. To the extent a party moves to compel Schmale to respond to discovery, counsel for Schmale must be given notice and appear at the hearing. Richard Palmese's computer crashed in mid-June 2015. Defendants' IT department would have populated his new computer with backup files if any existed. Because that did not happen, Defendants surmise that there was no backup at the time. (Chow Decl. ¶ 10.) As to the remaining custodians at issue, Songkick states that Defendants did not produce parent emails before July 14, 2015 for Rapino; Defendants did not produce parent emails before September 3, 2015 for Gahagan; Defendants produced only one personal email for Smith between June 22, 2012 and January 11, 2015; and Defendants produced only four emails for Trimble before February 9, 2015 and all of those were dated in August 2014. Defendants respond that they reviewed 80,000 emails dated before mid-2015 for Rapino, Gahagan, Smith and Trimble. Of those, Defendants produced over 3,700. (Ferguson Decl. ¶ 15.) 1. Duty to Preserve *2 The Supreme Court has cautioned that “[d]ocument retention policies,' which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business.... It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005). A party can be sanctioned for destroying evidence only “ ‘if it had a duty to preserve it.’ ” Micron Tech. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) (citation omitted). The duty to preserve arises “when litigation is ‘pending or reasonably foreseeable.’ ” Id. (citation omitted). “This is an objective standard, asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.” Id. “This standard does not trigger the duty to preserve documents from the mere existence of a potential claim or the distant possibility of litigation.” “However, it is not so inflexible as to require that litigation be ‘imminent, or probable without significant contingencies.’ ”[2] Id. (citation omitted). “When litigation is ‘reasonably foreseeable’ is a flexible fact-specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry.” Id. The question of whether a party had a duty to preserve is not the end of the inquiry. The next question is the scope of that duty to preserve. “A variety of events may alert a party to the prospect of litigation. Often these events provide only limited information about that prospective litigation, however, so that the scope of information that should be preserved may remain uncertain. It is important not to be blinded to this reality by hindsight arising from familiarity with an action as it is actually filed.” Advisory Committee Notes to 2015 Amendment to subdivision (e). When the duty to preserve is triggered, a party is required to put into place a litigation hold to preserve relevant documents. Net-Com Servs. v. Eupen Cable USA, Inc., 2013 U.S. Dist. LEXIS 109810, *6-*7 (C.D. Cal. Aug. 5, 2013) (party's duty to preserve arose at very latest on date it filed suit). In general, the duty to preserve evidence “includes an obligation to identify, locate and maintain, information that is relevant to specific, predictable, and identifiable litigation.” Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d at 1136. The duty to preserve applies to “those employees likely to have relevant information – the key players in the case.” Id. 2. Discussion Although Songkick is the plaintiff in this antitrust action, Songkick's motion argued that the duty to preserve was triggered by a cease and desist letter to Songkick from Ticketmaster's in-house counsel, Mr. Weiss, dated February 3, 2014. (Exh. EEE to Wolfson Decl.) In that letter, Weiss complained that Songkick ignored Ticketmaster's Fan Club Policies. Specifically, Songkick was allegedly offering tickets to the general public for shows on the artist's website after Ticketmaster's on sale had begun. Ticketmaster reserved the right to “pursue any and all of our various legal rights and remedies.” (Id. at 2.) *3 Significantly, Songkick does not represent that it put a litigation hold in place after receipt of Weiss' letter. Songkick merely represents that, on February 6, 2014, it instructed employees “in the Artist and Promoter Services Team” to forward “all materials and communications regarding Ticketmaster-compliance issues” to Bellin “for business reasons, including anticipation of potential litigation.” (Bellin Reply Decl. ¶ 4.) Even assuming, without deciding, that a duty to preserve was triggered by Weiss' February 6, 2014, the scope of that duty to preserve reasonably encompassed, at most, Songkick's compliance with Ticketmaster's fan club policies regarding artist presales. That is the only subject matter of Weiss' letter. “Ticketmaster-compliance issues” was the only subject matter of Songkick's own efforts to collect communications after receiving Weiss' letter. And that was the only subject matter of the follow-up communications in 2014 between Weiss and Songkick according to the record before the court on Songkick's motion. On February 28, 2014, Weiss sent an email to Mr. Even, Songkick's outside counsel, regarding Songkick's offering of tickets to any visitor to an artist website, not just fan club members. “Our business people continue to be willing to meet with your client to try to resolve the various issues, and I am waiting for you to get back to me about that.” Ticketmaster continued to “reserve all rights.” (Exh. 2 to Weiss Decl.) On March 2, 2014, Mr. Even responded to Weiss' email. Even represented that Weiss had incorrect information and that Songkick complied with Ticketmaster's fan club policies. The letter made no mention of a lawsuit. Even requested that Weiss communicate any further concerns to him rather than to Songkick directly. (Exh. FF to Wolfson Decl.) Weiss' response disputed Songkick's compliance. Weiss stated that “we would appreciate knowing relatively soon if there is a serious desire to attempt to informally resolve these matters. In the meantime, we continue to reserve all of our rights and remedies.” (Exh. 3 to Weiss Decl.) In April 2014, Even met in Los Angeles with Weiss, Schmale and Ticketmaster's outside counsel, Mr. Wall, by telephone. (Ray Decl. ¶ 3.) The next communication appears to occur in June 2014. Weiss sent an email to Even complaining that Songkick's presale on an artist website failed to comply with Ticketmaster's fan club policies. Even responded with factual information that he hoped addressed “concerns regarding the presale's compliance with TM's policy.” (Exh. 4 to Weiss Decl.) There is no indication in the record before the court that any party – Songkick, Ticketmaster or Live Nation – failed to preserve documents regarding Songkick's compliance with Ticketmaster fan club policies regarding artist presales after February 3, 2014. Ticketmaster's counsel represented at oral argument that Ticketmaster had preserved documentation within that scope.[3] *4 To the extent Songkick argues that Weiss' February 6, 2014 letter triggered a duty to preserve documents regarding the antitrust claims that Songkick filed over a year later on December 22, 2015, Songkick's argument is rejected. Songkick's antitrust complaint alleges, among other things, that Defendants use their market power to stifle competition in artist presales by creating artificial barriers in the artist ticket allocation process, forcing artist presale competitors or artists to fix service fees at Ticketmaster's level, coercing artists into using Ticketmaster for artist presales, and tying Live Nation's concert promotion services, Live Nation's artist management services and Ticketmaster's concert venue ticketing services to Ticketmaster's artist presale ticketing services. (E.g., Compl. ¶¶ 13, 15-18.) The correspondence between Weiss and Even in 2014 does not remotely touch on antitrust issues and does not address an antitrust challenge to the Fan Club Policy itself. Perhaps in recognition that Weiss' letter on February 3, 2014 does not support the scope of a duty to preserve that Songkick now asserts in hindsight, Songkick alternatively relied on Mr. Wall's letter dated January 21, 2015 to Even. (Exh. GG to Wolfson Decl.) In that letter, Mr. Wall took over from Weiss the lawyer-to-lawyer communications. Mr. Wall explained the Fan Club Policy generally as a discretionary exception to Ticketmaster's exclusive rights to sell tickets in contracts with venues. Wall objected to Songkick's resort to a litigator whenever a dispute arose over application of the Fan Club Policy. “This is not a normal way of doing business. It also implies that how Ticketmaster exercises its discretion is a legal matter, which it is not. This practice needs to come to an end. You may write or call me whenever there is a legal issue concerning the Fan Club Policy, which so far there has not been, but otherwise the discussions on these issues need to occur in business channels.” (Id. at 2.) After addressing specific issues as to particular artist presales, Wall stated that “[i]t is not Ticketmaster's desire to get into conflict with [Songkick] over whether its business practices interfere with Ticketmaster's exclusive rights.” (Id.) The Fan Club Policy is an effort to be transparent about when and under what conditions Ticketmaster will support artist fan clubs, “not to litigate (in letters or otherwise) whether practices it deems noncompliant require it to release tickets.” (Id.) Wall ended the letter with a statement that “[i]f [Songkick] has legal objections to what Ticketmaster is doing, I would be happy to hear them. Otherwise the business channels are open ....” (Id.) This court cannot say that a party should have reasonably foreseen litigation based on Mr. Wall's letter dated January 21, 2015. Micron, 645 F.3d at 1320. Wall expressly disclaimed any desire by Ticketmaster to “get into conflict with [Songkick].” (Exh. GG at 2 to Wolfson Decl.) Wall's letter reasonably is read as a request that discussions between the parties about the Fan Club Policy be conducted at the business level rather than between lawyers. See Cache Le Poudre Feeds, LLC v. Land O'Lakes Farmland Feed, 244 F.R.D. 614, 622 (D. Colo. 2007) (finding that litigation was not reasonably anticipated when lawyer's letter did not threaten litigation but rather expressed preference for negotiated resolution; citing cases). This court finds no duty to preserve based on Mr. Wall's letter. Moreover, the scope of any such duty would not include an antitrust challenge to the Fan Club Policy. Wall's letter does not address antitrust allegations. Instead, Wall's letter appears to be rejecting an argument that the Fan Club Policy itself creates “rights,” so to speak, that Songkick can assert in compliance disputes with Ticketmaster. In its reply papers, Songkick attaches an unsigned letter from Even to Wall dated January 26, 2015. (Exh. 5 to Waduge Reply Decl.) Songkick attaches a cover email to Wall. At oral argument, Ticketmaster's counsel stated that the letter was not located in their files. Wall states that he did not hear back from Even and that he did not bill any time to Ticketmaster related to Songkick from the date of his January 21, 2015 letter to the filing of Songkick's lawsuit. (Wall Decl. ¶¶ 9-10.) Songkick does not attach a response from Wall to Even's letter or other indication that Wall in fact received Even's letter. *5 In any event, assuming Even's January 26, 2015 letter was received and read by Wall, the court cannot say that a party should have reasonably foreseen litigation based on that letter. Even noted that it was through his communications with Weiss and Hannaford since February 2014 that “the parties have managed to solve ongoing issues over that time period.” (Id. at 2.) Even stated that the reason for his involvement is that “business and legal issues here are inextricably intertwined.” (Id.) Even explained that, in his view, Ticketmaster cannot use its market dominance, through selective enforcement of its Fan Club Policy, to place Songkick at a competitive disadvantage. (Id.) Even then addressed the specific factual issues raised by Wall's letter. Even concluded his letter by saying: “Those factual inaccuracies aside, [Songkick] welcomes your invitation to continue business-to-business discussions, with the hope of reaching a workable resolution of any pending disagreements.” (Id. at 3.) Even then inquired about the logistics of arranging further business communications. The business discussions apparently commenced the next day. (Exh. 6 to Waduge Reply Decl.) Even's letter does not mention or threaten a lawsuit, and instead welcomes business-to-discussions to reach a workable resolution of any disagreements. The court cannot say that a party should have reasonably foreseen litigation based on Even's letter. Cache, 244 F.R.D. at 622; compare Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d 1132, 1145 (N.D. Cal. 2012) (finding duty to preserve when Apple presented Samsung with more than vague hint that it believed Samsung violated intellectual property rights; Apple delivered comprehensive summary of specific patent infringement claims against specific Samsung products and thereby put reasonably prudent actor on notice that litigation was reasonably foreseeable). Finally, Defendants submit evidence that Live Nation revised its document retention policy in June 2015 so that emails were retained for set period of time (for example, 30 days for executives) unless the employee archived the emails. Archived emails are kept indefinitely.[4] (Chow Decl. ¶ 5.) Songkick presents no evidence that changes to the document retention policy were developed as part of a litigation strategy. Cf. Micron, 645 F.3d at 1322. For these reasons, Songkick's motion for a forensic search is denied.[5] To the extent Defendants seek sanctions for this portion of Songkick's motion, Defendants' request is denied. B. Financial Information (RFP Nos. 14, 44, 52, 81) Songkick's motion noted that Defendants had recently offered to produce certain sales and financial data. (Motion at 19 n.32; Letter dated Sept. 19, 2016, Exh. 23 to O'Mara Decl.) Defendants have ticket sales and revenue on an event-by-event basis for a five-year period.[6] (Exh. 26 at 9-10 to Waduge Reply Decl.; O'Mara Decl. ¶¶ 71-74.) Defendants also agreed to produce the client-level profit and loss (“P&L”) information for 2012-2015. (Exh. 26 at 10 to Waduge Reply Decl.; O'Mara Decl. ¶¶ 75-77.) Defendants responded to detailed follow-up questions about samples of that data, and agreed to break out various fees and royalties. (Id. at 4-8.) Defendants produced additional financial data including Pollstar data covering concert dates, artist, venue, promoter(s), ticket sales and revenue. (Id. ¶ 78.)[7] Exhibit 26 to Waduge's Reply Declaration outlined remaining issues. *6 During oral argument, counsel addressed the remaining issues before the court. 1. The parties agreed that, in general, each side would produce financial data through December 31, 2016. Defendants, however, object to producing client level P&Ls through December 31, 2016 because (1) it cannot be compiled until after the discovery cut-off date of January 23, 2017; and (2) Songkick has not shown any need for these reports given that Defendants will have produced client P&Ls for the period 2012-2015 and event-level data for 2016. Apparently, client level P&Ls can be compiled only after the close of the year and require manual effort to identify BP codes, allocate payments made to clients, and input cost assumptions and estimates. (Exh. 25 at 162 to O'Mara Decl.) This court concludes that it does not have authority to order discovery that cannot practicably be completed by January 23, 2017. The discovery cut-off date is “the date by which all discovery ... is to be completed.” (Order Re Jury Trial ¶ B.1, Dkt. No. 66.) Discovery motions must be calendared sufficiently in advance of the discovery cut-off date “to permit the responses to be obtained before that date, if the motion is granted.” (Id. ¶ B.3.) This order is without prejudice to Songkick's ability to request an extension of the discovery cut-off date from the District Judge upon the requisite showing. 2. After discussion with counsel, the court sets a deadline of November 30, 2016 for completion of Defendants' production of the agreed-upon financial documents. 3. Each party requests sanctions for this portion of Songkick's motion to compel. All such requests are denied. Having read through the relevant letters attached to the motion, opposition and reply, the court concludes that there was a misunderstanding and miscommunication regarding documents that were sometimes referred to weekly settlement reports or weekly sales reports. The weekly settlement reports or weekly sales reports would be responsive to RFP No. 3, which seeks payments by Ticketmaster to venue clients and is not at issue in this motion. (O'Mara Decl. ¶¶ 79-80.) The misunderstanding as to the import of these reports appears to date back to O'Mara's May 20, 2016 email and Wolfson's May 27, 2016 response. (Compare Exh. 8 at 1 with Exh. 11 at 1 to O'Mara Decl.) Songkick raised the issue of the weekly accounting accompanying Ticketmaster's weekly payment to a given venue. (Exh. 13 at 3 to O'Mara Decl.) The parties then launched into a discussion of the weekly settlement reports in addition to the client-level P&Ls discussed above. (Exh. 15 at 1 to O'Mara Decl.) In hindsight, the misunderstanding appears clear in Wolfson's email dated June 22, 2016. (Exh. 16 at 2-3 to O'Mara Decl.) There are gaps in the correspondence before the court during the next three-month period. The misunderstanding is not identified and cleared up until September 21, 2016. (Exh. 18 at 1-2, Exh. 23, Exh. 24 to Waduge Reply Decl.) Throughout this period, counsel were addressing numerous discovery disputes in their communications. On this record, the court cannot attribute fault to any party for the misunderstanding and miscommunication. C. Live Nation Custodians (RFP Nos. 19-51, 53-60, 63-64, 67-71, 74-76, 78, 80-90, 92, 94-96, 98) *7 Songkick contends that Live Nation is tying concert promotion services to artist presales or otherwise pressuring artists not to do business with Songkick. The parties negotiated a deal to conduct discovery in phases. Defendants proposed that the first phase focus on search terms “to determine whether there is any alleged evidence of coercion.” (Exh. 10 at 2 to O'Mara Decl.) Songkick agreed that the first phase, which is at issue in this motion, was to include emails related to “tying and/or LNE's participation in the overarching anticompetitive scheme regarding presales.” (Exh. 13 at 1, Exh. 14 to O'Mara Decl.) Defendants agreed. (Exh. 15 at 1 to O'Mara Decl.) Defendants stated that they reviewed over 82,000 documents and “no responsive documents were identified.” (Exh. 17 & Exh. 19 at 1 to O'Mara Decl.; O'Mara Decl. ¶ 47.)[8] Songkick contends that Defendants should have reviewed the documents for responsiveness to the document requests listed above. (Motion, Memo. at 24.) As stated in Wolfson's letter, “[i]f Songkick believed the first wave of documents showed LNE's tying, then the parties agreed to move on to the second phase.” (Exh. 20 at 1-2 to O'Mara Decl.) The court concludes that the parties' agreement was that the Defendants' review in the first phase was for documents responsive to the allegations of tying and Live Nation's “participation in the overarching anticompetitive scheme regarding presales” as stated in Songkick's letter, to which Defendants agreed. Unfortunately, the phrase “overarching anticompetitive scheme” does not describe with reasonable particularity the documents that Songkick seeks and assumes a conclusion with which Defendants disagree. The parties' letters do not more specifically identify the allegations at issue or the document requests at issue. That said, the document requests that Songkick now identifies go far beyond the parties' agreement. The court concludes that the RFPs reasonably encompassed by the parties' agreement are: RFP Nos. 26, 29-30 (compliance with fan club policy), 34, 43, 46, 53 (allegations), 67-70 (communications with artists re Songkick), and 86. The remaining document requests address other topics altogether or else topics that would be relevant only in a second phase according to the parties' agreement: Live Nation venues (RFP Nos. 20-21), fan club policy in general (RFP Nos. 22-23, 27-28, 98), artist presales and ticket allocations (RFP Nos. 24-25, 33, 37-41, 54-55, 57-60, 74-76, 78, 85), Songkick or other competitors in artist presale in general (RFP Nos. 31-32, 35, 45, 63-64, 92,[9] 94-96), ticket sales other than artist presales (RFP Nos. 36-37, 42, 58-60, 74-75, 85), the merger (RFP Nos. 47-51), financial information (RFP Nos. 44, 56, 80-84, 88-90), other litigation (RFP No. 71) and exclusive contracts (RFP No. 87). The merger claim was dismissed by court order. (Dkt. No. 62.) To the extent that any party seeks sanctions based on this portion of Songkick's motion, all such requests are denied. D. Interrogatory No. 1 Interrogatory No. 1 asks Defendants to identify, in the United States during the period December 22, 2011 through the present, each venue “for which Ticketmaster and/or Live Nation contend that ... Artist Presales conducted with respect to events at the Venue were required ... to comply with any version of a Fan Club Policy” pursuant to the terms of the Venue's contract with Ticketmaster and, for each Venue, the dates such terms were in effect. *8 Plaintiff contends that this interrogatory is directly relevant to Plaintiff's antitrust claims and Ticketmaster's counterclaims. Defendants argue that, read literally, the correct answer to Interrogatory is none because no venue is required to comply with the Fan Club Policy if artist presales are done through Ticketmaster. (See Compl. ¶¶ 106, 122-23.) Even if redrafted as intended by Songkick, Defendants argue that Interrogatory No. 1 requires them to do a contract-by-contract review for over 2400 clients. Ticketmaster's counterclaim alleges that “[w]hile the precise exclusivity terms vary across the thousands of venue contracts in Ticketmaster's porfolio,” the “intent of the parties to these contracts is to give Ticketmaster the right to service all tickets sold to the public, including artist presales, and prohibit the venue from using any other ticketing service provider for any of its tickets.” (Counterclaim ¶ 20.) Ticketmaster asserts a claim for intentional interference with contractual relations and alleges that it holds “exclusive rights to provide ticketing services for those venues, including presales.” (Id. ¶ 62.) At oral argument, the parties explained that they had reached an agreement as to Defendants' production of (1) approximately 100 contracts that form the basis of Ticketmaster's counterclaims; and (2) a sample of 100 contracts chosen by Songkick from different tiers. Given that Defendants have already produced the contracts that form the basis of Ticketmaster's counterclaims, Interrogatory No. 1 would not be proportional to the needs of the case as to those contracts because it is unreasonably duplicative. Songkick already knows Ticketmaster's contentions with respect to those 100 contracts. Fed. R. Civ. P. 26(b)(1). The court will order Defendants to respond to Interrogatory No. 1 solely as to the 100 sample contracts. For each of the 100 sample contracts, Ticketmaster shall identify each venue for which Ticketmaster or Live Nation contend that Artist Presales conducted by a non-Ticketmaster entity with respect to events at the Venue were required to comply with any version of a Fan Club Policy pursuant to the terms of the Venue's contract with Ticketmaster. IT IS ORDERED that Plaintiff's motion to compel is GRANTED IN PART AND DENIED IN PART as follows: 1. On or before November 30, 2016, Defendants shall produced the agreed-upon financial documents as set forth above. Songkick's motion to compel production of client P&Ls for the year 2016 is denied without prejudice. 2. On or before December 10, 2016, or on another date mutually agreed by counsel, Defendants shall review the approximately 82,000 documents collected for the Live Nation Custodians and shall produce the documents responsive to RFP Nos. 26, 29-30, 34, 43, 46, 53, 67-70 and 86. 3. On or before December 15, 2016, Defendants shall serve further responses to Interrogatory No. 1 as set forth above for each of the 100 sample contracts. 4. In all other respects, Songkick's motion to compel is denied. All requests for sanctions are denied. Footnotes [1] This order uses the term “Songkick” to refer to CrowdSurge as well. [2] In the Rambus litigation, the court concluded that overcoming the contingencies was reasonably foreseeable under the facts of that case, including Rambus' detailed preparations for litigation in light of the contingencies. 645 F.3d at 1324-25. The contingencies included the availability of product samples on the market from potentially infringing DRAM manufacturers, approval by Rambus' board to commence negotiations with a DRAM manufacturer, and rejection of Rambus' licensing terms by a targeted DRAM manufacturer. Id. at 1324. [3] Defendants state that they have reviewed over 345,000 documents dated before July 1, 2015 from Ticketmaster custodians. (Ferguson Decl. ¶ 11.) Of those, Defendants have produced over 10,000. (Id. ¶ 13.) For the custodians at issue in Songkick's motion to compel a forensic search, Defendants collected over 480,000 documents before de-duplication. After applying the agreed-upon search terms, Defendants reviewed close to 80,000 documents from these custodians and produced over 3,700. (Id. ¶ 15.) [4] At oral argument, defense counsel stated that Defendants did not remove litigation holds, such as the consent decree litigation hold, that were in place. [5] The record indicates that, in May 2015, a Ticketmaster client told Mead that the client had heard a rumor of active or impending litigation between Songkick and Ticketmaster. Mead, who had not heard such a rumor, contacted Zaidi and Smith at Ticketmaster. They had not heard of any active or impending litigation with Songkick, and could not substantiate the rumor. (Zaidi Surreply Decl. ¶¶ 2-4.) Rumor has not generally been found to create a duty to preserve. E.g., Moore v. Lowe's Home Ctrs., 2016 U.S. Dist. LEXIS 82652, *10-*11 (W.D. Wa. June 24, 2016) (fact that two employees were aware of rumor that co-worker would pursue litigation did not trigger company-wide duty to preserve). [6] Defendants' email dated September 27, 2016 indicated that it takes approximately one hour to pull event-level data for one client and create a spreadsheet. Ticketmaster has this data for over 1000 host clients. (Exh. 26 at 9-10 to Waduge Reply Decl.) [7] Defendants state that clients can use ReportPro platform or Ticketmaster ONE's Analystics to view their own data. These platforms are not supported for use to pull aggregate data across multiple clients. (Boone Decl. ¶ 22.) [8] Defendants clarify that the 55,500 number in the correspondence is an error. (O'Mara Decl. ¶ 47 & n.1.) [9] Defendants state that they have no artist presale ticketing contracts and, therefore, there are no documents responsive to RFP No. 19. that there is no contract between Ticketmaster and Applauze. Therefore, they have no documents responsive to RFP No. 92.