1 2 3 7 8 OM RECORDS, LLC, Case No. 23-cv-04506-JSW (RMI)
9 Plaintiff, ORDER RE: JURISDICTIONAL 10 v. DISCOVERY DISPUTES
11 OM DEVELOPPEMENT, SAS, et al., Re: Dkt. Nos. 70, 72 12 Defendants.
13 14 Now pending before the court are a series of disputes (see dkts. 70, 72) concerning 15 jurisdictional discovery which Judge White has referred to the undersigned. See Order of June 17, 16 2024 (dkt. 57) at 21-22. The first of the two sets of disputes consist of requests by Plaintiff (Om 17 Records, LLC) to denominate certain persons as proper custodians for search purposes, in addition 18 to the three individuals proposed by Defendant Olympique de Marseille, SASP (“OMS”), and its 19 subsidiary, Defendant OM Development, SAS (“OMD”) (collectively referred to as, “the OM 20 Defendants”); to deem the pertinent date range for responsive documents to begin September 1, 21 2017; to direct the OM Defendants to amend their written responses to comply with FRCP 22 34(b)(2) within 10 days; and, to direct the OM Defendants and their U.S. trademark attorneys 23 (K&G Law, LLP) to produce responsive documents together with a privilege log within 15 days. 24 See Ltr. Br. (dkt. 70) at 3. The second of the two sets of disputes boil down to requests by Plaintiff 25 to deem certain persons proper custodians for search purposes; to direct Defendant BMG Rights 26 Management, LLC ( “BMG U.S.A.”), and Defendant BMG Rights Management, SARL (“BMG 27 France”) (collectively referred to as, “the BMG Defendants”) to serve responses, without 1 Defendants and a certain witness (Mr. David Hirshland, a BMG US executive) to produce 2 responsive documents, together with any privilege log, within 15 days; and, to direct the BMG 3 Defendants to produce Mr. Hirshland for a deposition. See Ltr. Br. (dkt. 72) at 3. Pursuant to 4 Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the court finds these matters to 5 be suitable for disposition without oral argument. For the reasons stated below, Plaintiff’s requests 6 are granted in part and denied in part. 7 The factual background of this case has been narrated in detail (see dkt. 57 at 2-7) and 8 those details do not need to be rehashed here. Suffice it to say that Plaintiff alleges trademark 9 infringement, unfair competition, and interference with economic relations against Defendants in 10 relation to “their alleged use of the OM Records trademark in connection with a short lived and 11 now defunct venture between the French Defendants” which “was intended to develop and 12 promote French and Afro-French artists . . . [which] ended in December 2022.” See Ltr. Br. (dkt. 13 72) at 1, 3. The undersigned will, however, note the following elements of the procedural history 14 of this case that bear on some of the discovery disputes now before the court: (1) that all discovery 15 in this case was stayed pending the resolution of the Defendants’ pending motions to dismiss (see 16 dkt. 56 at 4); and (2) while the motions to dismiss for failure to state a claim by the OM 17 Defendants and the BMG Defendants were resolved on June 17, 2024, Judge White deferred 18 ruling on the motions to dismiss – on personal jurisdiction grounds – by the OM Defendants and 19 BMG France (collectively referred to as, “the French Defendants”) pending a period of 20 jurisdictional discovery (see dkt. 57 at 26-27). Accordingly, Plaintiff may take only jurisdictional 21 discovery at this time. See id. at 21-22; see also id. at 26 (“The Court refers the matter to a 22 randomly assigned Magistrate Judge for jurisdictional discovery.”). It should also be noted that the 23 now-operative pleading – the SAC – has been filed but has not yet been responded to; and, the 24 French Defendants’ dismissal motion on personal jurisdictional grounds – which is directed to the 25 FAC – remains pending while the Parties engage in jurisdictional discovery. 26 Letter Brief of August 7, 2024 (dkt. 70) 27 As mentioned, the first of the Parties’ two sets of disputes are between Plaintiff and the 1 proper timeframe regarding searches and document production, reportedly improper discovery 2 responses, and a dispute concerning a subpoena served on the OM Defendants’ Pennsylvania- 3 based trademark counsel, K&G Law, LLP. See Ltr. Br. (dkt. 70) at 1-3. 4 Custodians 5 Plaintiff seeks to include custodial searches for Jacques-Henri Eyraud (former President of 6 OMS and OMD) and Frank McCourt (both OM Defendants’ sole owner). Id. at 1. The OM 7 Defendants submit that they “have [already] identified three employees as custodians who were 8 most involved in the OM Records venture, including the negotiation of the OM Records term 9 sheet and the marketing and distribution of the label.” Id. at 4. The OM Defendants add that 10 Plaintiff’s counsel recently agreed to start with these custodians and revisit the issue after 11 document production progresses, however, Plaintiff now nevertheless seeks discovery from 12 OMS’s former highest-ranking officer, Mr. Eyraud, and OMS’s ultimate, beneficial owner, Mr. 13 McCourt (who is not a party to this action or to the OM Records term sheet). Id. Relying on 14 allegations set forth in the SAC, Plaintiff contends that the OM Records venture was launched 15 “following three years of dialogue between Mr. McCourt and a senior BMG US executive,” and 16 that “these two individuals, acting on behalf of their respective organizations, were responsible for 17 conceiving and launching the OM Records venture, and did so at least in part [while] in the U.S. 18 and California.” Id. at 3. Plaintiff adds that Mr. McCourt (who has substantial connections to this 19 State) republished a certain press release about this venture on his “McCourt Global” website 20 (which is his private family company with an office in Los Angeles) Id. Further, Plaintiff notes 21 that in mid-2020, the 50/50 partnership underlying the OM Records venture was memorialized in 22 a partnership agreement that was signed by Mr. Eyraud on behalf of OMS and that “[h]e is also 23 the sole signatory on the assignment of the infringing OM Records trademark from OMS to 24 OMD.” Id. (citing SAC ¶ 11). 25 In short, Plaintiff argues that “Mr. McCourt’s participation in the OM Records venture is 26 particularly relevant to the jurisdictional inquiry [because] [h]e is located here [in California].” Id. 27 As to Mr. Eyraud, Plaintiff submits that “[h]is signature is all over the core documentation. And, 1 communicate with Mr. McCourt about Defendants’ venture while Mr. McCourt was in the U.S., 2 that would demonstrate jurisdictional contacts here.” Id. As to Mr. McCourt, Plaintiff’s reasoning 3 seems attenuated – at best. Judge White held, for personal jurisdiction purposes, that: (1) 4 Defendants’ alleged knowledge of Plaintiff’s business does not create express aiming; (2) that 5 Defendants’ use of California-based social media, music, and video channels does not constitute 6 express aiming; and, (3) that even Defendants’ deal with California-based Trackdilla does not 7 show express aiming towards the forum. See Order (dkt. 57) at 12-16. Judge White also found that 8 the involvement of Mr. McCourt does not relate to the French Defendants. Id. at 17-18 (“McCourt 9 owns the Olympique de Marseille soccer club, which is a separate legal entity from OM 10 Developpement. [] McCourt did not sign the partnership agreement. Plaintiff makes no showing 11 that McCourt is personally responsible for Olympique de Marseille’s conduct, or that McCourt’s 12 conduct should be imputed to Olympique de Marseille. At best, there is an attenuated connection 13 between these nonparty individuals and the foreign defendants, but this connection does not 14 demonstrate that the French Defendants purposely directed their activities towards the United 15 States.” (citing Uhlig v. Fairn & Swanson Holdings, Inc., No. 20-CV-00887-DMS-MSB, 2020 16 WL 6872881, at *3 (S.D. Cal. Nov. 23, 2020) (ownership and control of nonresident defendant 17 alone do not establish the requisite level of control for alter ego jurisdiction)). Id. at 18. 18 While Plaintiff has added some allegations to the SAC in this regard (the plausibility of 19 which has yet to be evaluated), the OM Defendants contend that “Plaintiff’s conclusory (and 20 baseless) allegation in the SAC that Mr. McCourt was ‘directly involved in the operation’ of OM 21 Records after its launch (SAC at ¶16) does not alter Judge White’s reasoning or entitle Plaintiff to 22 his files.” See Ltr. Br. (dkt. 70) at 4-5. The OM Defendants also argue that requiring them to 23 search the files of Mr. Eyraud and Mr. McCourt would be unduly burdensome and 24 disproportionate to the needs of this action, and that it will not lead to discovery of information 25 that Judge White ruled is relevant to the jurisdictional inquiry at hand. Id. at 4. Moreover, the OM 26 Defendants argue that “Mr. McCourt should not be a custodian because he is not an officer, 27 director, or employee of either of the OM Defendants and thus his documents are not in the 1 Eyraud nor Mr. McCourt [were] substantively involved in the OM Records venture: (1) although 2 Mr. Eyraud signed a handful of relevant agreements, that demonstrates nothing more than that he 3 signed agreements as a senior officer; and (2) as Judge White explicitly ruled, Mr. McCourt’s 4 ‘alleged participation’ (involvement in pre-launch discussions with a BMG US executive) does 5 not create minimum contacts with the United States and is not attributable to any of the French 6 Defendants.” Id. (internal quotations and citation omitted). 7 In short, the undersigned finds that Plaintiff has failed to show any likelihood that either of 8 its proposed custodians would be in possession of relevant documents which would not be 9 expected to be produced through the custodians that “[t]he OM Defendants have [already] 10 identified,” to wit, the “three employees [] who were most involved in the OM Records venture, 11 including the negotiation of the OM Records term sheet and the marketing and distribution of the 12 label.” Id. at 4. Also, Plaintiff’s portion of the Letter Brief does not address the OM Defendants’ 13 contentions regarding proportionality, or the suggestion that neither Mr. Eyraud nor Mr. McCourt 14 had any significant involvement in the OM Records venture. 15 When moving to compel discovery, the moving party has the burden of demonstrating 16 relevance. See e.g., Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995). Beyond that, 17 in order to succeed on a motion to compel, a moving party bears the burden to show that it has 18 satisfied proportionality and other requirements of Rule 26. See Rodriguez v. Barrita, Inc., No. 09- 19 04057 RS-PSG, 2011 U.S. Dist. LEXIS 134079, at *4 (N.D. Cal. Nov. 21, 2011). In light of this, 20 courts are required to limit discovery if its burden or expense outweighs its likely benefit; this is 21 “the essence of proportionality,” a frequently ignored or overlooked discovery principle. In re 22 Glumetza Antitrust Litig., 2020 U.S. Dist. LEXIS 113361, at *31-32 (citing Apple Inc. v. Samsung 23 Elecs. Co., No. 12-cv-0630-LHK (PSG), 2013 U.S. Dist. LEXIS 116493, at *34-36 (N.D. Cal. 24 Aug. 14, 2013)). Thus, for the reasons stated by the OM Defendants, and also because Plaintiff has 25 not demonstrated any likelihood that either of its proposed custodians would be in possession of 26 any evidence relevant to the jurisdictional inquiry at hand that would not be expected to be 27 produced through the three employee custodians already-identified by the OM Defendants, 1 custodians is DENIED. 2 Timeframe 3 The Parties also dispute the proper timeframe to which the document searches would be 4 limited. See Ltr. Br. (dkt. 70) at 2, 5. Plaintiff seeks a date range that begins in September of 2017 5 because of the suggestion that this “date is consistent with the press release announcing the 6 Partnership Agreement, reciting that conversations between the ‘architects’ of the OM Records 7 venture (Mr. McCourt and another U.S. citizen) were underway three years prior to the public 8 announcement of that venture” – Plaintiff believes that “[t]hese communications, which more 9 likely than not include negotiation over the terms and conditions of the venture’s Partnership 10 Agreement and use of the OM Records name and mark in the U.S., as well as the drafting and 11 transmission to U.S. publications of Defendants’ press release announcing their OM Records 12 venture [], are relevant to jurisdictional contacts here.” Id. at 2. Plaintiff adds that “if the 13 Defendants were discussing Plaintiff during the period before the public announcement of their 14 OM Records venture, that would constitute further proof of their ‘targeting’ here in the U.S.” Id. 15 As an initial matter, this approach appears to misapprehend the sort of contact with the forum that 16 would establish jurisdiction. See Order (dkt. 57) at 12-16, 17-21 17 In any event, OM Defendants submit that Plaintiff’s proposed six-year period is 18 unnecessarily long for present purposes and that, given that the OM Records venture was launched 19 in September of 2020, a January 1, 2020, starting point “is sufficient to capture any relevant 20 discussions between OMS and BMG France (the parties to that agreement).” Ltr. Br. (dkt. 70) at 5. 21 The OM Defendants add that “Judge White held that Mr. McCourt’s pre-launch involvement in 22 conceiving the record label (before the term sheet was signed and before the OM Records name 23 was ever used) is not a basis for exercising personal jurisdiction over the OM Defendants,” and 24 that because “Judge White similarly held that the ‘individualized targeting’ theory is not 25 sufficient,” Plaintiff’s inquiry into the OM Defendants’ knowledge of Plaintiff’s forum 26 connections is unavailing. Id. (citing Order (dkt. 57) at 12-13). Nevertheless, the OM Defendants 27 have agreed to re-consider their position on the timeframe issue if, based on the review of the 1 2020, too restrictive. Id. In this regard, Plaintiff’s argument about what the earlier starting point 2 might yield seems to rest on a speculative foundation rather than on a concrete basis. The court 3 finds merit in the OM Defendants’ proposed approach that the issue should be revisited if Plaintiff 4 can later articulate a concrete argument as to why – as a matter of fact (rather than mere 5 speculation) – a date range that starts on January 1, 2020, is too restrictive. Accordingly, 6 Plaintiff’s request to compel the OM Defendants to use a starting point earlier than January 1, 7 2020, is DENIED. 8 The OM Defendants’ Responses to Plaintiff’s Document Requests 9 In the most general of terms, Plaintiff complains that the OM Defendants have provided 10 reportedly improper responses to a large but unspecified number of Plaintiff’s document requests. 11 See Ltr. Br. (dkt. 70) at 3. In essence, Plaintiff only states that “the OM Defendants fail to specify 12 what they are withholding,” and that “their amended responses repeatedly and substantively alter 13 the nature of the request, raising the standard for discoverable material under Rule 26.” Id. 14 Plaintiff then adds that “[t]he OM Defendants must answer the discovery actually served on them, 15 not the discovery they wish was served on them, rewriting the requests and taking it upon 16 themselves to determine what documents relate to their contacts here.” Id. Plaintiff’s portion of the 17 letter brief goes no further in identifying any specific document requests and responses at issue; 18 instead, Plaintiff has attached a 51-page document (see Exh. A (dkt. 70-1) at 2-52) containing 19 what appears to be the entirety of the OM Defendants’ amended responses and objections to 20 Plaintiff’s second set of requests for production with the expectation that the court might sift 21 through the entirety of that document in order to piece together specific objections and responses 22 that may or may not be responsive to each of the 32 underlying document requests (i.e., RPF Nos. 23 52-84). 24 For their part, the OM Defendants state that they have agreed to search for and produce 25 any responsive, non-privileged documents for eight requests—Nos. 56, 62, 64, 69, 74-76, and 84, 26 and that “[a]s for others — Nos. 51-55, 59-61, 63, 65-68, and 70-71 — the OM Defendants are 27 willing to search for and produce any non-privileged documents to the extent that they relate to the 1 distribution of the OM Records mark in California or the United States.’” Id. at 5 (quoting Order 2 (dkt. 57) at 21) (Judge White’s order permitting jurisdictional discovery established the following 3 contours for the limited discovery into jurisdiction: “[f]urther inquiry into each of the French 4 Defendants’ actions with regard to use and distribution of the OM Records mark in California or 5 the United States could yield evidence that the French Defendants did target California or the 6 United States, rather than merely France and other Francophone countries. In particular, evidence 7 that the French Defendants promoted the “OM Records” brand within California in conjunction 8 with Trackdilla could support a finding of purposeful direction here. The Court finds that limited 9 jurisdictional discovery is appropriate.”).1 10 It clearly appears that Plaintiff is not engaging the OM Defendants in good faith efforts to 11 narrow or resolve discovery issues without having to resort to court intervention. First, Plaintiff’s 12 portion of the letter brief is silent as to the eight requests for production that the OM Defendant 13 claim they have agreed to search for and produce as to any non-privileged materials. Second, 14 Plaintiff’s portion of the letter brief makes no effort to discuss or address the OM Defendants’ 15 assertion that their responses and objections to the remainder of Plaintiff’s requests for production 16 state that they are willing to search for and produce all non-privileged materials so long as they do 17 not fall outside the contours of jurisdictional discovery, as set forth in Judge White’s Order of June 18 17, 2024. Third, Plaintiff’s generalized request for the court to sift through dozens of requests and 19 responses lacks the requisite specificity to satisfy the legal requirements applicable to a request to 20 compel discovery. See e.g., Traverso v. City of Enumclaw, 2012 U.S. Dist. LEXIS 98461, *6 21 (W.D. Wash., Jul. 16, 2012) (“A motion to compel should identify what discovery requests are in 22 dispute, explain why the material requested is discoverable, and reflect the parties’ reasonable 23 efforts to narrow their disputes without court intervention.”). 24
25 1 Because the contours of the limited jurisdictional discovery currently underway were so clearly set forth 26 by Judge White’s June 17th Order, the court expects that counsel, working together cooperatively and in good faith, will be able to resolve – or at least substantially narrow – any future disputes without the need 27 for court intervention. However, the court will forewarn the Parties and their counsel that in the event of any future requests to compel that appear to the court to have not been substantially justified (as seems to 1 This failure to describe and justify the allegedly missing discovery that Plaintiff wishes to 2 compel is demonstrative of the fact that it has not met its burden of showing relevance and 3 proportionality. See Apple Inc. v. Samsung Electronics Co., Case No. 12-CV-0630-LHK (PSG), 4 2013 U.S. Dist. LEXIS 91450, 2013 WL 3246094, at *21 n.84 (N.D. Cal. 2013) (“In this district, 5 the party moving to compel has the burden of showing relevance.”); see also Soto v. City of 6 Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (“[I]n general the party seeking to compel 7 discovery bears the burden of showing that his request satisfies the relevance requirement of Rule 8 26.”); Sakas v. Settle Down Enterprises. Inc., 90 F. Supp. 2d 1267, 1282-83 (N.D. Ga. 2000) 9 (denying for lack of specificity a motion to compel discovery which was phrased in general 10 terms); see also Arons v. Lalime, 167 F.R.D. 364, 368 (W.D.N.Y. 1996) (reiterating that it had 11 previously denied plaintiff’s motion to compel discovery primarily because it had failed to 12 identify, with specificity, the discovery requests and responses at issue); James v. Lee, 2021 U.S. 13 Dist. LEXIS 103726, *12 (S.D. Cal., June 2, 2021) (“The Court cannot compel Defendant to 14 produce the discovery Plaintiff seeks, for Plaintiff has not identified with any specificity what 15 discovery he has requested Defendant to produce.”); Johnson v. Northwest Airlines, Inc., 2009 16 U.S. Dist. LEXIS 30731, 2009 WL 839044, at *2 (N.D. Cal., Mar. 30, 2009) (“Although the 17 burden on parties requesting discovery is low, they must meet a threshold of relevance that is 18 beyond speculation; litigants seeking to compel discovery must describe with a reasonable degree 19 of specificity the information they hope to obtain and its importance to their case.”); see also 20 Temblay v. OpenAI, Inc., 2024 U.S. Dist. LEXIS 87023, *5-6 (N.D. Cal., May 14, 2024) (same). 21 For these reasons, as well as those stated by the OM Defendants (see Ltr. Br. (dkt. 70) at 5), 22 Plaintiff’s document requests are DENIED. As stated above (see n.1 supra), the court expects any 23 forthcoming discovery disputes to either be resolved informally, or to be narrowed as a result of 24 good-faith meet and confer efforts, to be substantially justified, and to be presented properly in 25 accordance with the standards for articulating discovery disputes set forth above. 26 K&G Law Subpoena 27 Plaintiff has issued and served a subpoena for documents on the OM Defendants’ 1 again in general terms, that “K&G was focal point in the U.S. for Defendants’ effort to interfere 2 with Plaintiff’s trademark rights here — an effort eventually abandoned when the E.U. Intellectual 3 Property Office declared the French trademark registration used to gain priority in the U.S. to be 4 filed in bad faith.” Id. Plaintiff then adds that “K&G earlier indicated to Plaintiff’s Pennsylvania 5 counsel that it had identified 98 non-privileged documents that it expected to produce,” but that 6 “[s]ince then, [] K&G has failed and refused to do so, presumably at its former clients’ direction.” 7 Id. However, what is fatal to Plaintiff’s request is that its portion of the letter brief is silent as to 8 the following information: (1) the types documents sought by the subpoena; (2) any explanation as 9 to their relevance to the scope of jurisdictional discovery currently underway; (3) any showing as 10 to their proportionality to the needs of the case; and, perhaps most importantly, (4) any specific 11 information about the face of the subpoena as to where compliance is required, given that Fed. R. 12 Civ. P. 45(d)(2)(B)(i) directs the serving party to file motions to compel in “the district where 13 compliance is required,” and in light of the fact that some courts analyze the appropriate place for 14 a subpoena dispute based on the location identified on the face of the subpoena, even if it is not 15 where compliance is actually required.2 16 The OM Defendants respond by suggesting that the subpoena is improper because it is 17 directed at materials that are almost exclusively privileged, and that it concerns a subject that 18 Judge White has already rejected as being a basis for jurisdiction (to wit, OMD’s abandoned U.S. 19 trademark application) (citing Order (dkt. 57) at 20-21). Id. at 5. Nevertheless, the OM Defendants 20 report that K&G has timely responded to the subpoena, and that “it is counsel’s understanding that 21 K&G is willing to produce any responsive, non-privileged documents, notwithstanding its 22 objections, to avoid unnecessary motion practice.” Id. 23 Once again, it appears that the OM Defendants’ responses are falling upon deaf ears. Put 24 another way, it appears that Plaintiff is not engaging in good faith efforts to narrow or resolve its 25
26 2 See e.g., Uniloc USA, Inc. v. Apple Inc., No. 19-cv-01692-EJD (VKD), 2020 U.S. Dist. LEXIS 197778, 2020 WL 6262349, at *2 (N.D. Cal. Oct. 23, 2020) (“the Court concludes that under the 27 plain language of Rule 45(d), Apple’s motion to compel is properly filed in this district, as it is the 1 discovery disputes, or at least to wait until they are ripe before dumping them onto the court’s lap 2 in a raw and undeveloped form. The subpoena dispute is raw and undeveloped because Plaintiff 3 has provided no detail whatsoever about the information it seeks through the subpoena or about 4 the necessary details for a court to determine whether any enforcement of the subpoena ought to 5 take place in this district in the first place. Then there is the fact that the OM Defendants report 6 that “K&G is willing to produce any responsive, non-privileged documents, notwithstanding its 7 objections, to avoid unnecessary motion practice” (id.), which stands in direct conflict to 8 Plaintiff’s statement that K&G will not produce whatever unspecified documents are sought 9 through this subpoena, “presumably” at the direction of the OM Defendants (id. at 3). The entire 10 purpose underlying the joint-filing letter brief approach to presenting discovery disputes has been 11 undermined by the above-described disconnect in the Parties’ arguments. See Synopsys, Inc. v. 12 Ubiquiti Networks, Inc., 2018 U.S. Dist. LEXIS 231138, *5 (N.D. Cal. April 9, 2018) (“The meet- 13 and-confer and joint-letter-brief processes are not meant to be check-the-box exercises that the 14 parties rush through so they can file discovery motions with the court as quickly as possible.”); see 15 also Synopsys, 2018 U.S. Dist. LEXIS 85255, *5 (N.D. Cal. May 21, 2018) (“[O]ne of the central 16 purposes of the joint-letter-brief process [is] so that the parties can see each other’s positions and 17 arguments, can respond to them, can re-respond to the responses, etc., and thereby (1) try to find 18 areas of compromise and work out their disputes amongst themselves and (2) narrow, sharpen, and 19 focus the issues they cannot resolve before they present those issues to the court.”). Going 20 forward, if there are to be any further discovery disputes, the court expect a substantially better 21 effort from Plaintiff in the areas of narrowing its disputes and actually addressing the arguments 22 presented by the other party to the discovery dispute. For the reasons stated above, Plaintiff’s 23 request to “[d]irect the OM Defendants and K&G to produce responsive documents together with 24 a privilege log no later than 15 days from the date of the Court’s order” is DENIED. 25 Letter Brief of August 12, 2024 (dkt. 72) 26 The second of the Parties’ two sets of disputes are between Plaintiff and the BMG 27 Defendants and also can be reduced to four categories: disputes about proper custodians for search 1 addressed to a former BMG US executive; and, a dispute regarding Plaintiff’s desire to take a 2 deposition from that same former BMG US executive. See Ltr. Br. (dkt. 72) at 1-3. 3 Initially, the court will address the BMG Defendants’ resistance to Plaintiff’s efforts to 4 rope BMG US into the jurisdictional inquiry. See id. at 5-6. In this regard, the BMG Defendants 5 contend that the limited jurisdictional discovery currently underway should only be applicable to 6 the French Defendants, and that BMG US is not subject to jurisdictional discovery. Id. In this 7 regard, the undersigned will note two things. First, Judge White referred “the determination of the 8 scope of jurisdictional discovery and potential discovery matters that may arise” to the 9 undersigned. See Order (dkt. 57) at 21-22 (emphasis supplied). Second, as to Plaintiff’s allegations 10 that Mr. McCourt (the American owner of the Olympique de Marseille soccer team) conceived of 11 the idea for the infringing record label, and as to Mr. John Loeffler’s involvement (the BMG US 12 executive who was reportedly responsible for conceiving and launching Defendants’ venture and 13 who was reportedly bound by BMG France, via the venture’s Partnership Agreement, to stay 14 involved in the venture), Judge White held that “[i]n order for Loeffler’s vague involvement to be 15 imputed to BMG France, Plaintiff would first need to make a showing that Loeffler’s actions 16 could be imputed to BMG US, and second that BMG US is an alter ego of BMG France.” See 17 Order (dkt. 57) at 17-18. The upshot of these two observations is that the undersigned will not 18 accede to the BMG Defendants’ request to exclude BMG US from the jurisdictional discovery 19 process. However, neither shall Plaintiff have the right to exceed the contours of jurisdictional 20 discovery set forth in Judge White’s June 17th Order such as to venture beyond those contours as 21 it seems to be wont to do given the overbreadth – and at times patently irrelevant phrasing – of its 22 requests for production (see Exh. A (dkt. 72-1) at 7) (see e.g., RFP No. 50, asking for documents 23 reflecting the local of consumers who viewed, streamed, purchased, and/or downloaded any and 24 all Om Records Enterprise songs, albums or music videos platforms from 2020 to present – 25 without regard for their global location, or any other limitation pertinent to the issue of personal 26 jurisdiction over the French Defendants; see also RFP No. 52, asking for all documents showing 27 the extent of the Olympique de Marseille football club’s fanbase in California from 2020 to 1 football club’s San Francisco or Los Angeles fan clubs from 2017 to present). Like these 2 examples, many of Plaintiff’s requests seem to be either too broadly phrased, or patently irrelevant 3 to any issue in the case – let alone the issue of personal jurisdiction over the French Defendants. 4 Thus, the undersigned will grant Plaintiff limited leeway to take some jurisdictional 5 discovery from BMG US – but only to the extent that would be necessary to make a showing (if 6 possible) that Mr. Loeffler’s actions should be imputed to BMG US, and that BMG US should be 7 considered as an alter ego of BMG France. Within these limits, Plaintiff’s request to deem Mr. 8 John Loeffler and Mr. David Hirshland (two BMG US executives that Plaintiff contends were 9 involved in the venture associated with the infringing mark) as proper custodians for search 10 purposes is GRANTED. 11 Further, subject to the limitations set forth below, Plaintiff’s request to deem Mr. Sylvain 12 Gazaignes (a BMG France executive who reportedly signed the venture’s Partnership Agreement 13 and aided Mr. Hirshland in coordinating the venture’s response, and to whom Mr. Loeffler 14 reported on matters relating to the venture), and Mr. Emilie Hauck (a BMG France employee who 15 was reportedly made the Artistic Director for the infringing record label who reported to Mr. 16 Gazaignes and was reportedly based in the OM Defendants’ offices in Marseille) is GRANED. 17 Thus, to the extent stated herein, the BMG Defendants’ request to prevent Plaintiff from seeking 18 any discovery from BMG US is DENIED. Furthermore, because the jurisdictional inquiry is 19 limited, the undersigned finds that paper discovery is sufficient for present purposes and that 20 Plaintiff has not made a showing as to why Mr. Hirshland must be deposed at this time. 21 Accordingly, the BMG Defendants’ request to prevent Plaintiff from taking Mr. Hirshland’s 22 deposition is GRANTED. 23 As to the scope of the documents that Plaintiff can request, the BMG Defendants submit 24 that Plaintiff’s discovery should be limited to the categories of documents set forth in Exhibit G 25 (see Exh. G (dkt. 72-1) at 50-51). Having reviewed Exhibit G and the Parties’ submissions in this 26 regard (Ltr. Br. (dkt. 72) at 1-6), the BMG Defendants’ request is GRANTED in part and 27 Plaintiff’s discovery requests to the BMG Defendants shall be limited to the categories set forth in 1 || jurisdictionally-significant action (as described in Judge White’s June 17th Order) on the part of 2 any BMG US officer or executive is able to be imputed to BMG US, and if so, any discovery that 3 might show that BMG US is an alter ego of BMG France. 4 Going forward, if Plaintiff wishes to take discovery beyond the parameters described 5 herein, or if a dispute arises otherwise, the Parties are ORDERED to meet and confer in a 6 || meaningful fashion such as to resolve or narrow their discovery disputes to distinct, discrete, and 7 genuine issues, such that they can be articulated properly in a 5-page letter brief in accordance 8 || with the standards set forth herein. If such a letter brief is to be filed, Plaintiff is specifically 9 || admonished to take care to carefully address any of Defendant(s)’ contentions, concessions, and 10 arguments such as to avoid needlessly bringing unripe or undeveloped disputes before the court 11 (see n.1 supra). 5 13 Dated: September 6, 2024 14 Ml Z □ 15 R@BERT M. ILLMAN = 16 United States Magistrate Judge
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