Judge Mark A. Young, Case 21SMCV00926 2022-07-29 Tentative Ruling

Judge: Mark A. Young, Case: 21SMCV00926, Date: 2022-07-29 Tentative Ruling

Case Number: 21SMCV00926 Hearing Date: July 29, 2022 Dept: M

CASE NAME: Q Prime Inc. v. Kiedis, et al.

CASE NO.: 21SMCV00926

MOTION: Motion to Compel Defendants to Produce Items 14, 17 and 19 from their Privilege Log

HEARING DATE: 7/29/2022

BACKGROUND

On May 21, 2021, Plaintiff Q Prime Inc., dba Q Prime Management, filed the instant breach of contract action against Defendants Anthony Kiedis, Michael Balzary, Chad Smith, and John Frusciante. Defendants are members of the rock band the Red Hot Chili Peppers. Plaintiff is their former personal manager. Defendants terminated Plaintiff on November 4, 2020. Pursuant to a sunset clause in their contract, Defendants were obligated to pay Plaintiff sixteen percent of “gross earnings” derived from songs created/released while Plaintiff represented them for three years following the termination. Six months after the termination, Defendants sold a catalog of songs. Defendants refused to pay Plaintiff sixteen percent of gross earnings from that sale.

On June 9, 2022, the Court held an IDC on the instant discovery issue. On June 27, 2022, Plaintiff filed a motion to compel production against Defendants. Defendants oppose.

Legal Standard

In the absence of contrary court order, a civil litigant’s right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010; see Davies v. Superior Court (1984) 36 Cal.3d 291, 301.)

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310.)

Analysis

Plaintiff moves to compel Defendants to produce Items 14, 17, and 19 on their privilege log on the ground that their claim of privilege lacks merit. (Code Civ. Proc., § 2031.310(a)(3).) Plaintiff specifically seeks:

Item 14 – A November 16, 2020, email from Defendants’ transactional attorney Eric Greenspan to Defendants and Guy Oseary regarding “terms of possible catalog sale deals and other pending band issues” and attaching an earlier email regarding a “conversation with C. Burnstein re Q Prime commissions on catalog sale”;

Item 17 – A December 9, 2020, email from Mr. Greenspan to Defendants and Mr. Oseary regarding “Greenspan draft email to Q Prime confirming sunset clause”; and

Item 19 – A December 19, 2020, email from Mr. Greenspan to Defendants and Mr. Oseary regarding “Q Prime and 2021 European tour dates.”

Defendants objected to the production on attorney-client privilege grounds. Generally, the attorney-client privilege must be construed narrowly because they prevent the admission of relevant and otherwise admissible evidence. (Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 850; McKesson HBOC, Inc. v. Superior Court (2004) 116 Cal. App. 4th 1229, 1236.) The burden is on the party asserting the privilege to show that it applies. (Behunin, supra at 844–45.) The privilege extends to information disclosed to third persons “who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted[.]” (Evid. Code § 952.)

Disclosure of privileged communications to a third party will not destroy the privilege where either: (1) the third party is an agent or assistant who will help to advance the litigant's interests; or (2) the third party is not in any sense an agent of the litigant or attorney but is a person with interests of his or her own to advance in the matter, interests that are in some way aligned with those of the litigant. (Citizens for Ceres v. Superior Court, (2013) 217 Cal.App.4th 889; accord Anderson v. SeaWorld Parks & Ent., Inc. (N.D. Cal. 2019) 329 F.R.D. 628.) Given the factual circumstances, Defendants may only rely on the first option to justify their claim of privilege.

In Behunin , the court observed that the privilege would still apply where counsel used third parties to develop a litigation or settlement strategy, i.e., achieve the ends of the representation, which in that case involved public relations consultants. (Behunin, supra, 9 Cal. App. 5th at 849-850.) That said, the communication to the third party must be “more than just useful and convenient, but rather . . . the involvement of the third party [must] be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications.” (Id. at 849.) The mere fact that such communications relate in some way to the object of representation is insufficient. (See, e.g., Id., at 850 [communications were intended to develop a public relations strategy in response to litigation, and thus unprivileged]; Egiazaryan v. Zalmayev, (S.D.N.Y. 2013) 290 F.R.D. 421, 431 [examining similar NY law, plaintiff failed to show consultants’ involvement was necessary to facilitate communications between himself and his counsel, such as a translator or an accountant clarifying communications between an attorney and client]; cf. In re 3dfx Interactive, Inc., (ND Cal. 2006) 347 BR 394, 405-406 [concluding without any substantive analysis that company that purchased debtor's graphics chip business did not waive the attorney-client privilege by transmitting documents to accountants or consultants hired by defendant to assist it in the transaction.].)

Here, Defendants must show that each email copied to Mr. Oseary, whatever his precise role or title, were “reasonably necessary to advance the purpose” of Defendants’ representation as defined by the above case law. The Court finds that Defendants have not meet this burden.

In this matter, Defendants contend that the submitted declaration from counsel, Mr. Greenspan, explains why he was “reliant” on Mr. Oseary as the band’s de facto manager to “effectively communicate” with Defendants about the “various matters” he was handling on their behalf. Mr. Greenspan explained that his firm has represented Defendants in transactional entertainment matters since 1983. (Greenspan Decl., ¶ 2.) He provides that, generally, his firm’s representation frequently requires them to communicate with Defendants’ personal managers to complete the work the firm was retained to perform. (Id. ¶ 4.) He further explains that the management team is “typically in constant direct communication with the clients and therefore frequently acts as a liaison between” his firm and his clients. (Id.) For instance, counsel would need to discuss licensing requests and queries from record, publishing, and merchandising companies with the band’s management team. (Id. ¶ 5.) The management team would “typically” then confer with the band and get back to counsel with the band’s decision. (Id.)

Following Plaintiff’s termination, the band did not immediately hire another manager. (Id., ¶7.) Mr. Oseary is a longtime friend and confidant of the band, who is also a professional talent manager. (Id.) He began acting as the band’s advisor and, from Greenspan’s “perspective,” acting as the band’s manager. (Id.) Greenspan states that sometime after firing Plaintiff, Defendants “directed us to keep in touch with Mr. Oseary because he would be advising the band going forward.” (Id.)

Mr. Greenspan’s declaration fails to connect the above general statements to the specific emails at issue with this motion. Instead, the declaration generally provides that during November and December 2020, counsel was handling “numerous matters” on behalf of the band. (Id. ¶ 8.) Greenspan “copied” Mr. Oseary on the three emails “in order to keep him informed about the matters we were working on” for the Band, so that Mr. Oseary could advise the band, and so Mr. Oseary could provide input “that might assist” counsel in effectively representing Defendants. (Id.) Even assuming that Mr. Oseary was acting as part of Defendants’ management team, this does not explain what Mr. Oseary did vis-à-vis the subjects of the emails. Certainly, Mr. Oseary was not facilitating any communications (or acting as a “liaison”) by being cc’d onto an email. Moreover, there is no evidence that suggests that the emails to Mr. Oseary were “reasonably necessary” to serve any purpose in facilitating the communications or advancing the ends of counsel’s representation. Instead, counsel and clients apparently found it convenient to have Mr. Oseary in the loop, since the manager “typically” and “frequently” acted as a liaison between the firm and clients. This compels a result similar to that in Behunin, in which the Court of Appeal concluded that plaintiff failed to meet their burden of establishing reasonable necessity of disclosure to accomplish the lawyer’s purpose. (Behunin, 9 Cal. App. 5th850.)

Accordingly, Plaintiff’s motion to compel is GRANTED. The three documents are ordered produced without further redaction within ten days.