Yellow Rose Productions, Inc. v. Pandora Media, LLC Case No. 2:22-cv-809-MCS-MAR United States District Court, C.D. California Filed April 12, 2024 Counsel Richard Steven Busch, Melinda Hope Lewis, Seth Davis Mumy, King and Ballow Law Offices, Los Angeles, CA, Andrew H. Davis, Pro Hac Vice, David M. Niemierzycki, Pro Hac Vice, Mary Catherine Amerine, Pro Hac Vice, King and Ballow Law Offices, Nashville, TN, 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 MOTION FOR A PROTECTIVE ORDER, DKT. 267 *1 On March 27, 2024, Pandora Media, LLC (“Defendant”) filed a motion for a protective order limiting the topics for their upcoming Fed. R. Civ. P. 30(b)(6) deposition. ECF Docket No. (“Dkt.”) 267. The Court finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Accordingly, the April 17, 2024 hearing is VACATED. For the reasons set forth below the motion is GRANTED in part and DENIED in part. I. BACKGROUND On February 7, 2022, Plaintiff Yellow Rose Productions, Inc. filed this action against Defendant. 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 (collectively, “Plaintiffs”). Dkt. 18. On September 12, 2022, Plaintiffs 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 March 27, 2024, Defendant filed a motion for a protective order to limit the deposition topics for Defendant's 30(b)(6) witness. Dkt. 267. On April 3, 2024, Defendant filed a memorandum in support of their motion, Dkt. 279, and Plaintiffs filed a memorandum in opposition, Dkt. 276. II. DISCUSSION A. APPLICABLE LAW Federal Rule of Civil Procedure 30 governs depositions by oral examination. See Fed. R. Civ. P. 30. Rule 30(a)(1) provides that, subject to certain limitations, “[a] party may, by oral questions, depose any person, including a party, without leave of court ....” Fed. R. Civ. P. 30(a)(1). In turn, Rule 30(b)(6) provides that: In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. Fed. R. Civ. P. 30(b)(6). Once served with the deposition notice under Rule 30(b)(6), the responding party is required to produce one or more witnesses knowledgeable about the subject matter of the noticed topics. Great Am. Ins. Co. of N.Y. v. Vegas Const. Co., 251 F.R.D. 534, 538 (D. Nev. 2008). The responding party has “a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.” Id. at 539 (internal citation and quotation marks omitted). *2 The “effectiveness of [Rule 30(b)(6)] bears heavily upon the parties' reciprocal obligations” to identify topics with particularity and prepare witnesses in good faith. DarbeeVision, Inc. v. C&A Mktg., Inc., No. CV 18-0725 AG (SSx), 2019 WL 2902697, at *8 (C.D. Cal. Jan. 28, 2019) (quoting Lipari v. U.S. Bancorp, N.A., No. 07-2146-CM-DJW, 2008 WL 4642618, at *5 (D. Kan. Oct. 16, 2008)). “[I]t is simply impractical to expect Rule 30(b)(6) witnesses to know the intimate details of everything.” Id. (citing Dealer Computer Servs., Inc. v. Curry, No. 12 Civ. 3547 (JMF)(JLC), 2013 WL 499520, at *2 (S.D. N.Y. Feb. 7, 2013) (“A [Rule 30(b)(6)] deposition is not a quiz, nor is it the most practical way to obtain [all types of] information.”)). Accordingly, “the Court has the authority to restrict relevant topics for a 30(b)(6) deponent based on practical limitations.” Wieland v. Bd. of Regents of Nev. Sys. of Higher Ed., No. 3:19-cv-00724-MMDCLB, 2021 WL 4443683, at *3 (D. Nev. Sept. 28, 2021). “The reasonableness of the length and scope of a Rule 30(b)(6) deposition notice turns on the circumstances of each case.” Reno v. W. Cab Co., No. 2:18-cv-00840-APG-NJK, 2020 WL 5902318, at *2 (D. Nev. Aug. 31, 2020). Pertinent circumstances for consideration include the number of topics, the scope of information sought by the topics, the complexity of the case, the amount of time allotted for the Rule 30(b)(6) deposition, the nature of the subject matter addressed in the topics, and whether the information can be obtained more efficiently through other means. See, e.g., United States v. HVI Cat Canyon, Inc., No. CV 11-5097 FMO (SSx), 2016 WL 11683593, at *8–10 (C.D. Cal. Oct. 26, 2016). In addition, Rule 30(b)(6) witnesses are not required to provide expert testimony, but “must testify about information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). B. TOPIC NOS. 11, 14, AND 20 Plaintiffs have amended topic nos. 11, 14, and 20. Dkt. 267 at 33–34. Defendant represents that they accept the topics as amended and no longer seek a protective order as to these topics. Dkt. 279 at 2–3. Accordingly, the motion is moot as to these topics and the Court will not address them. C. TOPIC NO. 8 Through topic no. 8, Plaintiffs seek testimony as to “[t]he reason Pandora sent out in December 2015 an email ... and what Pandora did thereafter to ensure it had the required licenses to interactively stream Musical Compositions and/or Literary Works on its interactive streaming service.” Dkt. 267 at 38. The Court has already discussed the relevance of the 2015 email in its August 29, 2023 order. Dkt. 193 at 5 (“The Court finds that the plain language of the 2015 email shows that it related only to musical works ... [and] Plaintiffs' requests concerning the RDIO assets likely seek information wholly irrelevant to the period covered by the statute of limitations.”). Ultimately, the Court granted Defendant's request for a protective order with respect to requests for production pertaining to the 2015 email. Id. The parties requested clarification as to whether the order pertained to deposition topics as well as the request for production. Dkt. 194. The Court clarified that the order did not pertain to deposition topics because the parties' briefing “only addressed the written discovery requests.” Dkt. 202 at 3. Here, Plaintiffs argue that questions regarding Defendant's acquisition of the RDIO servers may yield relevant testimony regarding what Defendant knew about their duties to license literary works, what investigations they took to arrive at that understanding, and how they segregated literary works in their workflow. Dkt. 267 at 37. The Court finds Plaintiffs' arguments partially persuasive. Plaintiffs are permitted to ask questions regarding any spoken word comedy works acquired from the RDIO acquisition, including questions investigating how Defendant sought to attain the proper licenses and how that workflow was segregated from other categories of assets, such as musical works. While the Court acknowledges that the timing of the acquisition falls outside of the 2019 statute of limitations, the Court understands that Defendant's practice surrounding this acquisition likely informed Defendant's actions during the relevant time period, and therefore may be relevant to the issues in this action. *3 However, for all the reasons discussed in the August 2023 order—including the balancing of the factors of relevance, proportionality, and burden—the Court finds that questions pertaining to Defendant's investigations into what licenses were required for musical works would be unduly burdensome and not proportional to the needs of the case. See Dkt. 194. Accordingly Plaintiffs may not inquire into Defendant's investigation as to licenses for any work that is not spoken word comedy. The Court notes that Plaintiffs are understandably interested in how the workflow for musical works differs from that of non-musical works; where the questions seek to compare practices for spoken word comedy to other works, Defendant is encouraged to err on the side of disclosure. Ultimately, the Court DENIES the request for the protective order as written but GRANTS the protective order with respect to questions pertaining to the licensing of works other than spoken word comedy. Topic no. 8 shall be amended to include only “[w]hat Pandora did after the December 2015 RDIO email to ensure it had the required licenses to interactively stream spoken word comedy on its interactive streaming service.” D. TOPIC NOS. 3, 4, 6, 7, 9 Defendant asserts that these “topics seek information about the internal deliberations and legal analyses that led to Pandora's public filings, which, as Pandora explained, were undertaken by in-house counsel acting in their legal capacity and are privileged.” Dkt. 279 at 3. Plaintiffs argue that the topics seek factual information that is not covered by attorney-client privilege. Dkt. 276 at 3–4. The Federal Rules do not permit discovery into privileged material. Fed. R. Civ. 26(b)(1). However, a Fed. R. Civ. P. 30(b)(6) corporate deponent (“Rule 30(b)(6) deponent”) “cannot refuse to disclose facts which their attorneys conveyed to them and which the attorneys obtained from independent sources.” See Great Am. Ins. Co. of New York v. Vegas Const. Co., 251 F.R.D. 534, 541 (D. Nev. 2008) (quoting Sprint Commc'ns Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 529 (D. Kan. 2006)). Likewise, “when a corporation produces an employee as a Rule 30(b)(6) deponent to testify to corporate knowledge, the employee must provide responsive underlying factual information even though such information was transmitted through or from corporate lawyers.” Sprint, 236 F.R.D. at 529. Furthermore, “privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney,” Upjohn Co. v. United States, 449 U.S. 383, 395 (1981); nor does it “prevent the disclosure [of] facts communicated by an attorney to a client that the attorney obtained from independent sources.” E.E.O.C. v. Caesars Ent., Inc., 237 F.R.D. 428, 433 (D. Nev. 2006) (citing Hickman v. Taylor, 329 U.S. 495, 508 (1947)). The disputed topics here include Defendant's preparation of SEC filings, investigations into the comedy industry custom and practice on licensing before Defendant started streaming spoken word comedy, and whether comedians have ever been paid “mechanical equivalent royalties.” None of the topics appear to exclusively seek information that would automatically fall within the ambit of attorney-client communications or work product. Accordingly, the Court refuses to issue a blanket protective order on these topics. To the extent Plaintiffs seek testimony about specific communications covered by attorney-client privilege, Defendant may raise appropriate objections during the deposition. See Dominguez v. City of Los Angeles, No. CV 17-4557-DMG (PLAx), 2018 WL 6332279, at *4 (C.D. Cal. May 24, 2018) (“[T]he Court notes that, as set forth above, an attorney can instruct ‘a deponent not to answer [ ] when necessary to preserve a privilege....’ ”) (citation omitted). However, the parties are cautioned that Rule 30(d)(2) provides for sanctions against one who “impedes, delays or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). III. COSTS AND FEES A. APPLICABLE LAW *4 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, the Court granted the motion in part and denied it in part, demonstrating to some extent that both parties had reasonable arguments. The Court notes that Plaintiffs only amended their topics after Defendant provided their portion of the Joint Stipulation—this is not best practice and could hint at gamesmanship on Plaintiffs' part. Still, the Court does not wish to discourage any agreement between the parties in what has been a contentious discovery period. Indeed, any gamesmanship with respect to this motion has not occurred in a vacuum—the tactics employed by both parties have led to a lack of trust and seemingly constant need for Court intervention. Accordingly, while the Court declines to award costs and fees to Defendant for this motion, the Court cautions the parties that it will seriously consider further monetary sanctions should the parties continue to abuse the discovery process. IV. ORDER IT IS THEREFORE ORDERED that: (1) The April 17, 2024 hearing is VACATED; (2) Defendant's motion for a protective order is DENIED as moot with respect to topic nos. 11, 14, and 20; (3) Defendant's motion for a protective order is DENIED in part and GRANTED in part with respect to topic no. 8, as explained above; (4) Defendant's motion for a protective order is DENIED with respect to topic nos. 3, 4, 6, 7, and 9; and (5) Defendant's request for costs is DENIED. IT IS SO ORDERED.