Yellow Rose Productions, Inc. v. Pandora Media, LLC Case No. 2:22-cv-809-MCS-MAR United States District Court, C.D. California Filed January 24, 2024 Counsel Richard Steven Busch, Seth Davis Mumy, King and Ballow Law Offices, Los Angeles, CA, Andrew H. Davis, Pro Hac Vice, Mary Catherine Amerine, Pro Hac Vice, King and Ballow Law Offices, Nashville, TN, Melinda Hope Lewis, Michelman and Robinson, LLP, Los Angeles, CA, for Yellow Rose Productions, Inc. Christopher John Kelly, Mayer Brown LLP, Palo Alto, CA, Allison M. Aviki, Pro Hac Vice, Jacob B. Ebin, Pro Hac Vice, Megan P. Fitzgerald, Pro Hac Vice, Paul M. Fakler, Pro Hac Vice, Mayer Brown LLP, New York, NY, Christopher C. Watts, Pro Hac Vice, Mayer Brown LLP, Houston, TX, Douglas Allen Smith, Maximillian Wolden Hirsch, Michael Anthony Calvanico, John Nadolenco, Mayer Brown LLP, Los Angeles, CA, William H. Stallings, Pro Hac Vice, Mayer Brown LLP, Washington, DC, for Pandora Media, LLC. Rocconi, Margo A., United States Magistrate Judge Proceedings: (In Chambers) ORDER RE: PANDORA'S SECOND MOTION TO COMPEL, DKT. 208 *1 On December 20, 2023, Pandora Media, LLC (“Defendant”) filed a motion to compel (“Motion”) against Yellow Rose Productions, Inc. and nine (9) consolidated Plaintiffs (collectively, “Plaintiffs”). ECF Docket No. (“Dkt.”) 208. On December 27, 2023, Defendant filed a memorandum in support of its motion, Dkt. 214, and Plaintiffs filed an opposition, Dkt. 216. On January 4, 2024, Plaintiffs filed objections to Defendant's memorandum in support of its motion. Dkt. 230. On January 9, 2024, Defendant filed a response to Plaintiffs' objections. Dkt. 231. For the reasons set forth below the motion is GRANTED in part and DENIED in part. I. BACKGROUND Plaintiff Yellow Rose Productions, Inc. filed this action against Defendant on February 7, 2022. Dkt. 1. On March 22, 2022, the district judge ordered this case to be consolidated for pretrial purposes with nine (9) other cases brought against Defendant by individual comedians, their production companies, or their estates. Dkt. 18. On September 12, 2022, Plaintiffs collectively filed the operative second amended consolidated complaint for copyright infringement. Dkt. 70. Plaintiffs bring their consolidated copyright infringement action against Defendant, a digital broadcast radio and interactive streaming service. Dkt. 178 at 9. Plaintiffs argue that the use of comedic recordings implicate two (2) distinct copyrights—one for the sound recording of the comedy routine and one for the underlying jokes embodied in the spoken-word comedy recordings (“literary works”). Id. at 29. Plaintiffs allege that Defendant failed to obtain a license or pay royalties on the underlying literary works. Id. at 9–10. On July 18, 2023, Plaintiffs filed a motion to compel. Dkt. 178. On that same day, Defendant filed a motion for a protective order addressing the same issues as Plaintiffs' motion to compel. Dkt. 179. On July 19, 2023, Defendant filed their own motion to compel. Dkt. 180. On August 15, 2023, the Court ruled on the motions granting and denying them all in part. Dkt. 193. In the current motion Defendant claims Plaintiffs have not fully complied with the Court's August 15, 2023 order, id., and has failed to adequately respond to discovery requests. Dkt. 208. The Court finds these matters suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Accordingly, the matter stands submitted. II. PLAINTIFFS' OBJECTIONS TO DEFENDANT'S SUPPLEMENTAL MEMORANDUM On December 27, 2023, Defendant filed a 5-page memorandum in support of its motion with 54-pages of declarations and exhibits. Dkt. 214. On January 4, 2024, Plaintiffs filed objections to Defendant's memorandum in support of its motion, arguing that the Local Rules do not allow a party to attach exhibits to a supplemental memo. Dkt. 230. On January 9, 2024, Defendant filed a response to Plaintiffs' objections. Dkt. 231. Local Rule 37-2.2 sets forth requirements parties must follow in preparing a joint stipulation for discovery disputes. The moving party must provide its portion of the stipulation “together with all declarations and exhibits to be offered in support of the moving party's position.” Id. After the joint stipulation is filed, each party may file a supplemental memorandum of law that is no more than five pages in length. L.R. 37-2.3. “No other separate memorandum of points and authorities may be filed by either party in connection with the motion.” Id. *2 Courts in our district have allowed supplemental declarations and exhibits under certain circumstances. See, e.g., Sprengel v. Mohr, No. CV 11-8742-MWF (SPx), 2012 WL 12885115, at *2 n.3 (C.D. Cal. Sept. 14, 2012). In Sprengel, the court noted that although Local Rule 37-2.2 appears to contemplate that all declarations and exhibits will be filed with the joint stipulation, Local Rule 37-2.3 does not explicitly prohibit supplemental declarations or exhibits. See id. The supplemental evidence in Sprengel consisted of 61-pages that aided the resolution of the dispute. Id. For that reason, the court declined to strike the supplemental evidence. Id. Here the supplemental evidence provided by Defendant provides information that aids the Court in resolving the dispute. The fact that the evidence is not favorable to Plaintiffs because it tends to substantiate Defendant's claim that documents exist that Plaintiffs have not produced does not, without more, make the supplement improper. Accordingly, Plaintiffs' objections are overruled. III. MOTION TO COMPEL A. UNPRODUCED DOCUMENTS AND RESPONSES NOT UPDATED Most of the current motion to compel pertains to documents the Court has already ordered Plaintiffs to produce or supplemental discovery that Plaintiffs have already agreed to produce. Essentially, Plaintiffs assert that they either already have produced or are in the process of producing all that they have, while Defendant alleges that they have received very few documents in certain categories and for certain Plaintiffs and therefore Plaintiffs' production cannot be complete. Dkt. 208. For example, Defendant asserts that Plaintiffs have not provided (1) any documents related to Plaintiffs' motivation in bringing the lawsuit (“motivation documents”), as ordered by this Court in its August 15, 2023 order; or (2) financial documents for several of the Plaintiffs. Dkt. 208 at 15–18. Plaintiffs assert that, while they are still in the process of producing documents, they (1) do not have any motivation documents and (2) have substantially produced what is available. Dkt. 207 at 18–21. Generally, when a party avers that no responsive documents exist, absent any evidence to the contrary, courts presume the parties are answering honestly, lest courts become mired in disputes over search adequacy. See Khan v. Boohoo.com USA, Inc., No. CV-20-03332-GW-JEMX, 2021 WL 3882970, at *1 (C.D. Cal. July 19, 2021) (“Defendants fail to present any declaration setting forth facts that Plaintiffs' search was inadequate. Defendants state, ‘It appeared that counsel for Plaintiffs may have asked their client whether responsive documents exist.’... This is pure speculation. Every document production would be mired in disputes over search adequacy if it were sufficient that a propounding party merely believed without any factual or evidentiary showing that documents have been withheld.”). However, where the seeking party presents convincing evidence that further responsive documents do exist, courts find that the defending party is not relieved of their discovery obligations. See Strategic Partners, Inc. v. FIGS, Inc., No. CV 19-2286-GW (KSX), 2021 WL 4813646, at *11 (C.D. Cal. Aug. 12, 2021) (“Although the Court generally presumes the accuracy of a party's representation that its document production is complete, here, SPI has presented convincing “contrary evidence” that additional documents likely exist such that FIGS is not yet relieved of its discovery obligations as to its HAI claim.”). Here, Defendant provides some evidence that documents that do exist have not been produced. For example: The Court granted Defendant's motion to compel as to motivation documents and now Plaintiffs assert they do not have any documents. Dkt. 208 at 18–19. However, Plaintiffs did not note this in their initial responses or at any point during the extensive litigation of the motion to compel. For some Plaintiffs and custodians no documents have been produced. Dkt. 208 at 32–38. Defendant obtained a “2021 cash flow report” for Plaintiff Clay from a third party, but the document has never been produced by Plaintiff Clay. Dkt. 214 at 3. Plaintiffs have previously provided copyright information to nonparty Word Collections, but has not produced the documents to Defendant. Dkt. 214 at 5. The Court finds these facts constitute convincing evidence that responsive documents exist that have not been produced. Defendant also alleges that Plaintiffs have failed to make good on their previous agreements to produce further documents and supplement responses. Plaintiffs argue they are still in the process of producing and supplementing. Plaintiffs also describe the burden of providing the samples of asserted works that they have agreed to produce. For example, Plaintiffs assert that Defendant is asking them to “disassemble and dismantle framed displays of their accomplishments.” Dkt. 208 at 53. However, Defendant's request—which Plaintiff agreed to comply with—did not explicitly require this, but rather sought only “each of the Asserted Works, one sample of each format and version— Including all packaging—in which the Asserted Work has been issued, released, or distributed in any media.” Id. at 40. The Court notes that, in the robust motion practice throughout this case, Plaintiffs have not sought a protective order related to this request, nor do they ask the Court for one now. Given that Plaintiffs raise the issue for the first time now, at the eleventh hour, in response to discovery they already agreed to produce, the Court does not take Plaintiffs' implication that Defendant's requests are absurd or unduly burdensome to be in good faith. However, the Court is cognizant of the fact that Plaintiffs cannot produce documents that do not exist. Therefore, if Plaintiffs maintain that no further responsive documents exist, Plaintiffs' counsel shall submit a declaration explaining their search in detail, including, but not limited to, all sources searched, and all search parameters used for each Plaintiff and custodian. See In re Facebook Privacy Litigation, No. 5:10-cv-02389-RMW, 2015 WL 3640518, at *2 (N.D. Cal. June 11, 2015) (ordering party to submit a declaration explaining her search for responsive documents in detail). Once Plaintiff has either produced such a declaration or produced the remaining documents, the Court is unlikely to grant any relief in response to further motions to compel on these items. If Plaintiffs' assertions that “no responsive documents exist” prove to be false, there are other remedies available; for example, the propounding party may impeach the defending party at trial, or seek sanctions for any alleged spoliation. B. DATE CERTAIN Defendant argues that the parties agreed to a binding substantial discovery deadline. Dkt. 208 at 21–26. Plaintiffs argue that there was no binding agreement. Id. at 26–32. The procedural history regarding this deadline is somewhat convoluted and not altogether relevant here. Defendant asks for a date certain by which Plaintiff must provide all discovery that the Court ordered and that Plaintiff agreed to produce. The Court finds this request to be reasonable in light of the impending discovery deadline.[1] As such, Defendant's request for a date certain is GRANTED. Plaintiffs are ordered to comply with all of their discovery obligations related to this order, the August 15, 2023 order, and the other agreements discussed in the motion to compel by February 7, 2024. C. REDACTED DOCUMENTS *4 Defendant asserts that Plaintiffs have improperly redacted documents. Dkt. 208 at 58–61. Plaintiffs assert the redacted information is irrelevant and/or implicates privacy concerns of third parties not involved in this case. Id. at 61–63. 1. Relevancy and responsiveness Courts in this Circuit typically conclude that the unilateral redaction of documents on the ground that the producing party deems the information irrelevant is generally improper. As one court explained: Redaction is generally an inappropriate tool for excluding information that a party considers to be irrelevant or nonresponsive from documents that are otherwise responsive to a discovery request. It is a rare document that contains only relevant information; and irrelevant information within an otherwise relevant document may provide context necessary to understand the relevant information. “[U]nilateral redactions are inappropriate if they seek not to protect sensitive or protected information, but merely to keep non-responsive information out of an adversary's hands.” United States v. McGraw-Hill Companies, Inc., No. CV 13-0779-DOC JCGX, 2014 WL 8662657, at *4 (C.D. Cal. Sept. 25, 2014). Doe v. Trump, 329 F.R.D. 262, 275-76 (W.D. Wash. 2018) (some internal citations omitted). There are many reasons why redactions for relevancy are disfavored. A bright line “no redactions for relevancy” rule is easy to enforce, while a party's selective redactions for relevancy breed suspicion and may lead to litigation over matters that may ultimately prove to be entirely unrelated to the case. See In re Medeva Securities Litigation, No. 93–4376–KN AJWX, 1995 WL 943468, at *3 (C.D. Cal. May 30, 1995) (“The Court does not welcome unilateral editing of documents by the producing party. Even when implemented with restraint and in good faith, the practice frequently gives rise to suspicion that relevant material harmful to the producing party has been obscured.”). In other words, if courts generally allowed parties to redact irrelevant information, it would inevitably lead to disputes that waste the Court's and the parties' resources in violation of Federal Rule of Civil Procedure 1, which requires that the Rules of Civil Procedure “be construed, administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Indeed, Federal Rule of Civil Procedure 5.2, which addresses when redaction is permitted, does not expressly authorize redactions for irrelevancy. Fed. R. Civ. P. 5.2(a); see also Francisco v. Emeritus Corp., No. CV 17-2871 BRO (SSx), 2017 WL 11036693, at *6 (C.D. Cal. Sept. 5, 2017) (“ ‘[T]he Federal Rules of Civil Procedure do not grant parties the power to unilaterally redact information on the basis of relevance.’ ”) (quoting Bartholomew v. Avalon Capital Grp., Inc., 278 F.R.D. 441, 452 (D. Minn.2011)). Finally, any concern about disclosure of irrelevant information is mitigated by the fact that there is a protective order in place in this action. Id. Therefore, Plaintiffs are not entitled to redact information based on irrelevancy or non-responsiveness and those documents must be reproduced to Defendant in an unredacted form. 2. Unrelated third party privacy *5 Plaintiffs further assert that some information was redacted because some custodians have turned over documents that contain business information of unrelated third parties. Dkt. 208 at 61– 63. Defendant does not provide an argument on this point. “Federal courts ordinarily recognize a constitutionally based right of privacy that can be raised in response to discovery requests.” Keith H. V. Long Beach Unified School Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005) (citation omitted). “[R]esolution of a privacy objection ... requires a balancing of the need for the information sought against the privacy right asserted.” Id. (citation omitted). Additionally, privacy objections can be appropriately addressed by: (1) redacting any personal identifying information from the documents produced; and (2) producing documents under a protective order to minimize any invasion into the individuals privacy rights. See Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003). As Defendant has not argued that they are entitled to this information, the Court will not determine whether or not the redaction was proper. Plaintiffs may redact such material but shall provide a log of these redactions that identifies the party is a non-party and what type of private information that was redacted. See Miller v. Travel Guard Grp., Inc., No. 21-cv-09751-TLT (JCS), 2023 U.S. Dist. LEXIS 83874, at *3 (N.D. Cal. May 12, 2023) (ordering a redaction log for redacted information). Defendant notes that they are not objecting to the redaction of sensitive personal identifying information, such as social security numbers, regardless of whether that information belongs to a party or nonparty. Dkt. 208 at 58. To the extent Plaintiffs' redactions removed personal identifying information, these redactions may obviously remain in place but should also be included in the redaction log. To the extent any privacy or confidentiality concerns remain, the Court notes that privacy and privilege concerns have been contemplated and mitigated by the protective order that the parties stipulated to and that is already in place in this action. Dkt. 80; see In re Heritage Bond Litigation, 223 F.R.D. 527, 2004 WL 1970058, *5 n.12 (C.D. Cal. 2004) (finding that privacy concerns can be adequately protected by a protective order). IV. COSTS AND FEES A. APPLICABLE LAW Pursuant to Federal Rule of Civil Procedure 37(a)(5)(C) (“Rule 37”), “[i]f the motion is granted in part and denied in part, the court may ... after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). B. ANALYSIS Here, while the Court granted the motion in part and denied it in part, many of Plaintiffs' objections appear to be made in bad faith. Still, any gamesmanship has not occurred in a vacuum and the tactics employed on both sides have led to a lack of trust and seemingly constant need for Court intervention. Accordingly, the Court declines to award costs and fees to Defendant and each party will be responsible for its own costs incurred. V. ORDER IT IS THEREFORE ORDERED that: (1) Defendant's motion to compel unproduced documents and responses that the Court has ordered or that Plaintiff has agreed to is GRANTED; (2) Defendant's request for a date certain is GRANTED and Plaintiffs are ordered to comply with all of their discovery obligations related to this order, the August 15, 2023 order, and the other agreements discussed in the motion to compel by February 7, 2024; *6 (3) Defendant's motion to compel redacted information is GRANTED in part and DENIED in part: a. Plaintiffs are ordered to provide unredacted information withheld on the basis of irrelevance and/or non-responsiveness; b. Plaintiffs may redact non-party private and financial information but must provide a redaction log. (4) Defendant's request for costs is DENIED. IT IS SO ORDERED. Footnotes [1] The Court recognizes that a motion for an extension of the discovery deadline is under submission with the district court. Dkt. 235. However, the Court makes this ruling as to these specific categories of production regardless of whether the district court grants an extension.