Pandora Media, LLC v. Spoken Giants, LLC Case No. 2:23-mc-149-MCS-MAR United States District Court, C.D. California Filed February 14, 2024 Counsel Maximillian Wolden Hirsch, Douglas Allen Smith, Mayer Brown LLP, Los Angeles, CA, Raymond J. DiCamillo, Richards Layton and Finger, Wilmington, DE, Allison M. Aviki, Pro Hac Vice, Jacob B. Ebin, Pro Hac Vice, Paul M. Fakler, Pro Hac Vice, Mayer Brown LLP, New York, NY, Katharine Lester Mowery, Nathalie Anne Freeman, Richards Layton and Finger, PA, Wilmington, DE, for Petitioner. John P. Cogger, Gordon Rees Scully Mansukhani LLP, Los Angeles, CA, Joshua D. Wilson, Pro Hac Vice, Gordon Rees Skully Mansukhani LLP, Franklin, TN, for Respondent. Attorneys Present for Defendant: N/A. Rocconi, Margo A., United States Magistrate Judge Proceedings (in chambers): ORDER RE: PANDORA'S MOTION FOR AN ORDER TO SHOW CAUSE WHY NONPARTY SPOKEN GIANTS, LLC SHOULD NOT BE HELD IN CONTEMPT, DKT. 48 *1 On January 29, 2024, Pandora Media, LLC (“Pandora”) filed a motion for an order to show cause why nonparty Spoken Giants, LLC (“Spoken Giants”) should not be held in contempt for failing to comply with the Court's December 6, 2023 discovery order, ECF Docket No. (“Dkt.”) 36. Dkt. 48. On February 5, 2024, Spoken Giants filed an opposition to the motion. Dkt. 55. The Court finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. For the reasons set forth below, the motion is DENIED without prejudice and the parties' February 26, 2024 hearing is VACATED. I. BACKGROUND: On February 7, 2022, Yellow Rose Productions, Inc. filed an action against Pandora. Yellow Rose Productions, Inc. v. Pandora Media, LLC, No. 2:22-cv-809-MCS-MAR (“No. 809”) Dkt. 1. On March 22, 2022, the district court ordered this case to be consolidated for pretrial purposes with nine (9) other cases brought against Pandora by individual comedians, their production companies, or their estates (collectively “Plaintiffs”). No. 809, Dkt. 18. Pandora brought antitrust counterclaims against the comedians, as well as Spoken Giants and Word Collections, LLC (“Word Collections”), licensing groups that represent the comedians. No. 809, Dkts. 34, 72. On July 15, 2022, Plaintiffs and counter-defendants Spoken Giants and Word Collections filed a motion to dismiss Pandora's counterclaims. No. 809, Dkt. 49. On October 26, 2022, the district court dismissed the counterclaims without prejudice. No. 809, Dkt. 83. On November 18, 2022, Pandora brought amended counterclaims against the comedians, Spoken Giants, and Word Collections. No. 809, Dkts. 93, 94. On April 5, 2023, the district court dismissed all of Pandora's counterclaims with prejudice; accordingly, Spoken Giants and Word Collections were terminated as parties to the action. No. 809, Dkt. 164. On November 28, 2022, when Spoken Giants was still a counter-defendant in the case, Pandora propounded sixty-eight (68) discovery requests on them. No. 149, Dkt. 2 at 10. After Spoken Giants was dismissed as a party, Pandora propounded twenty-eight (28) discovery requests on Spoken Giants as a nonparty, pursuant to Federal Rule of Civil Procedure 45. Id. On October 12, 2023, Pandora filed a motion to Compel Spoken Giants to comply with a subpoena in the District of Delaware. Case No. 2:23-mc-149-MCS-MAR (“No. 149”), Dkt. 1. The subpoena sought discovery for Yellow Rose Productions, Inc. v. Pandora Media, LLC, No. 2:22-cv-809-MCS-MAR, a case pending in this district. Id. On October 25, 2023, the motion was transferred to the Central District of California upon the parties' stipulation. No. 149, Dkt. 8–11. The undersigned granted in part and denied in part Pandora's motion to compel, and Spoken Giants was given 21-days to comply with the order. No. 149, Dkt. 36 at 12. The fact discovery deadline for the underlying case was set for February 28, 2024. No. 809, Dkt. 174. However on February 5, 2024, after Pandora filed the current motion, the district court extended the fact discovery deadline to April 29, 2024. No. 809, Dkt. 241. II. DISCUSSION A. PANDORA'S ALLEGATIONS *2 In the pending motion Pandora asserts that Spoken Giants did not produce the ordered discovery by the undersigned's ordered deadline, December 27, 2023. No. 149, Dkt. 48 at 5. Pandora admits that they received the production on December 28, 2023, but argue that the late production was missing “obviously responsive documents known to be within Spoken Giants's possession, custody, and control.” Id. Pandora describes some of the allegedly missing documents in detail and explains that “these documents are only representative examples that Pandora was easily able to identify as missing, but [they] clearly demonstrate that Spoken Giants could not possibly have made the reasonable search necessary to comply with the order compelling discovery.” Id. at 7. Pandora asserts that they met and conferred with Spoken Giants on January 11, 2024, about the allegedly missing production. Id. at 10–11. On the meet and confer call, “Pandora asked Spoken Giants to explain the steps and efforts taken to comply with the order, particularly any efforts Spoken Giants took to search for, collect, and produce responsive documents. Spoken Giants did not provide this information during the meet-and-confer; nor did it do so in subsequent email communications.” Id. at 11. Pandora alleges that they spoke with Spoken Giants a few times throughout January and each time Spoken Giants responded with more responsive documents; however, Pandora complains that Spoken Giants never explained what “steps it had taken to ensure compliance with the order.” Id. at 12. On January 29, 2024, Pandora asserted to Spoken Giants that it had to file the pending motion that day, as January 29, 2024, was the last day to “meet the last available hearing date pursuant to the current case calendar.”[1] Id. B. SPOKEN GIANTS'S OPPOSITION Spoken Giants disputes the allegations of non-compliance. No. 149, Dkt. 55 at 14. They contend that they have produced all responsive documents. Id. With respect to the documents produced after the initial production, Spoken Giants contends that they either inadvertently left out the documents or that they did not believe they were responsive. Id. However, Spoken Giants asserts that they have produced every document that Pandora has specifically identified, even if Spoken Giants does not believe it is responsive. Id. Spoken Giants argues that, if Pandora would identify missing documents, as they have in a few instances, Spoken Giants would rectify the omissions. Id. Spoken Giants asks for costs for having to answer this “frivolous and unnecessary motion.” Id. at 17. C. RELEVANT LAW Rule 45 authorizes the court to hold in contempt a nonparty who fails without adequate cause to obey a subpoena or an order related to it. Fed. R. Civ. P. 45(g). However, absent consent by the parties, magistrate judges lack contempt authority except in limited circumstances, none of which are applicable here. See 28 U.S.C. § 636(e); Bingman v. Ward, 100 F.3d 653, 656–57 (9th Cir. 1996). Absent consent, a magistrate judge may only investigate whether further contempt proceedings are warranted and, if so, “certify” such facts to a district judge. 28 U.S.C. § 636(e)(6); see also C.D. Cal. Gen. Order 05-07; Aguilar v. City of Azusa, No. CV14-9183-GW (JPRX), 2016 WL 11755112 (C.D. Cal. Jan. 5, 2016). Specifically: The magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge. *3 28 U.S.C. § 636(e)(6). Essentially, the magistrate judge's role is to determine whether the movant has established a prima facie case of contempt—i.e., whether the movant has shown by clear and convincing evidence that the party or nonparty has violated a court order. See Aguilar, 2016 WL 11755112 at *2; In re Dyer, 322 F.3d 1178, 1190–91 (9th Cir. 2003) (noting that, to find a party in civil contempt, the moving party must show “by clear and convincing evidence that the contemnors violated a specific and definite order of the court.”). D. ANALYSIS Here, Pandora has not met their burden to show by clear and convincing evidence that Spoken Giants violated a court order; furthermore, the Court sees no need to conduct an evidentiary hearing on this issue. While the parties agree that Spoken Giants was a day late on there initial document production, Spoken Giants told Pandora on December 27, 2023, that it would provide documents on the following day. No. 149, Dkt. 55 at 6. Pandora did not respond or object. Id. The Court is cognizant of the fact that the majority of Spoken Giants's work to meet this production deadline was done over the winter holidays, and thus the Court does not find that this one day delay rises to the level of contumacious behavior. See Walker v. Asset Mktg. Sys. Ins. Servs. LLC, No. 11-CV-2531-BTM (JMA), 2012 WL 827010, at *5 (S.D. Cal. Mar. 9, 2012) (“In short, although the documents were not produced as quickly as would have been ideal, the Court finds that AMS did not engage in contumacious behavior of the type justifying this Court to certify facts to the district judge regarding civil contempt, or for the Court to require an evidentiary hearing.”); FTC v. Roca Labs, Inc., No. 8:15-cv-2231-T-35TBM, 2017 WL 131574, at *2 (M.D. Fla. Jan. 13, 2017) (“In light of the production made by Peters, even if a few days late, I find no basis for contempt sanctions against Mr. Peters.”). Furthermore, if there was a specific issue created by the one-day delay, Pandora could have immediately objected to Spoken Giants's notice; however, Pandora did not respond until January 5, 2024—after the winter holidays were complete. Additionally, Spoken Giants notes that, where Pandora has specifically identified missing documents, they have thus produced them. No. 149, Dkt. 55 at 6. Spoken Giants asserts that some of the omissions were inadvertent, while others were due to a disagreement about whether they documents were responsive; in any case, Spoken Giants produced the documents. Id. at 7. While both parties describe a lengthy back-and-forth exchange between them, the Court does not find it productive to parse through the finger pointing at this time. What is clear to the Court is that the parties were engaging with one another to reach a resolution on these issues, and, if not for the impeding February discovery deadline, Pandora would have likely continued to engage with Spoken Giants instead of bringing this motion. See No. 149, Dkt. 48 at 12. Ultimately, it is clear that Spoken Giants has not refused to comply with the Court's order and was making efforts to cure any perceived non-compliance; furthermore, Pandora has continuously accepted Spoken Giants' efforts. Accordingly, the Court does not find that Pandora has established a prima facie case for contempt at this point. Pandora's motion for an order to show cause why nonparty Spoken Giants should not be held in contempt is DENIED. *4 The parties are thus admonished once again to work this issue out amongst themselves. While the Court does not find that Pandora has established a prima facie case of contempt by clear and convincing evidence at this point, the Court notes that Spoken Giants has admittedly omitted documents and continues to dispute the scope of the Court's prior order; there may be a point where Spoken Giants's evasiveness or even negligence would render a contempt sanction appropriate. Likewise, Pandora is encouraged to communicate what exactly they believe is missing to Spoken Giants, as they did in this motion, and continue to receive Spoken Giants's efforts to comply in good faith. The parties are admonished to communicate with one another with clarity and civility. The parties are further admonished that should this issue come before the Court again, the Court will expect to see a robust record of meeting and conferring, an explicit identification of any allegedly omitted documents along with which request they are responsive to, and a complete description of what steps Spoken Giants's searches involved. Additionally, the Court notes that it has already made rulings in the underlying litigation about redactions and privacy, No. 803, Dkt. 240; the Court is unlikely to rule differently on these issues and would encourage the parties to familiarize themselves with the Court's prior rulings and comply accordingly. III. COSTS AND FEES Both parties have asked for costs. This motion was denied, so Pandora is not entitled to costs pursuant to Fed. R. Civ. P. 45(g). Spoken Giants could be entitled to costs under Federal Rule of Civil Procedure 37(a)(5)(B) (“Rule 37”), which affords that, if a discovery motion is denied, the Court must, “after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees.” Id. However, “the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Id. Pandora filed this motion on the last possible day to calendar a hearing under the previous discovery deadline. While the Court finds that the motion is now premature in light of the deadline extension, Pandora was substantially justified in bringing the motion under the prior circumstances. Accordingly, each party will be responsible for its own costs. IV. ORDER IT IS THEREFORE ORDERED that: (1) Pandora's motion for an order to show cause why nonparty Spoken Giants should not be held in contempt is DENIED without prejudice. (2) The parties' requests for costs are DENIED. (3) The February 26, 2024 hearing is VACATED. IT IS SO ORDERED. Footnotes [1] The underlying motion was filed on January 29, 2024, the district court extended the discovery deadline on February 5, 2024. No. 809, Dkt. 241.