Opinion
23-cv-04506-JSW (RMI)
09-06-2024
OM RECORDS, LLC, Plaintiff, v. OM DEVELOPPEMENT, SAS, et al., Defendants.
ORDER RE: JURISDICTIONAL DISCOVERY DISPUTES RE: DKT. NOS. 70, 72
ROBERT M. ILLMAN UNITED STATES MAGISTRATE JUDGE
Now pending before the court are a series of disputes (see dkts. 70, 72) concerning jurisdictional discovery which Judge White has referred to the undersigned. See Order of June 17, 2024 (dkt. 57) at 21-22. The first of the two sets of disputes consist of requests by Plaintiff (Om Records, LLC) to denominate certain persons as proper custodians for search purposes, in addition to the three individuals proposed by Defendant Olympique de Marseille, SASP (“OMS”), and its subsidiary, Defendant OM Development, SAS (“OMD”) (collectively referred to as, “the OM Defendants”); to deem the pertinent date range for responsive documents to begin September 1, 2017; to direct the OM Defendants to amend their written responses to comply with FRCP 34(b)(2) within 10 days; and, to direct the OM Defendants and their U.S. trademark attorneys (K&G Law, LLP) to produce responsive documents together with a privilege log within 15 days. See Ltr. Br. (dkt. 70) at 3. The second of the two sets of disputes boil down to requests by Plaintiff to deem certain persons proper custodians for search purposes; to direct Defendant BMG Rights Management, LLC (“BMG U.S.A.”), and Defendant BMG Rights Management, SARL (“BMG France”) (collectively referred to as, “the BMG Defendants”) to serve responses, without objections to Request for Proposal (“RFP”) Sets 2 and 3 within 10 days; to direct the BMG Defendants and a certain witness (Mr. David Hirshland, a BMG U.S. executive) to produce responsive documents, together with any privilege log, within 15 days; and, to direct the BMG Defendants to produce Mr. Hirshland for a deposition. See Ltr. Br. (dkt. 72) at 3. Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the court finds these matters to be suitable for disposition without oral argument. For the reasons stated below, Plaintiff's requests are granted in part and denied in part.
The factual background of this case has been narrated in detail (see dkt. 57 at 2-7) and those details do not need to be rehashed here. Suffice it to say that Plaintiff alleges trademark infringement, unfair competition, and interference with economic relations against Defendants in relation to “their alleged use of the OM Records trademark in connection with a short lived and now defunct venture between the French Defendants” which “was intended to develop and promote French and Afro-French artists . . . [which] ended in December 2022.” See Ltr. Br. (dkt. 72) at 1, 3. The undersigned will, however, note the following elements of the procedural history of this case that bear on some of the discovery disputes now before the court: (1) that all discovery in this case was stayed pending the resolution of the Defendants' pending motions to dismiss (see dkt. 56 at 4); and (2) while the motions to dismiss for failure to state a claim by the OM Defendants and the BMG Defendants were resolved on June 17, 2024, Judge White deferred ruling on the motions to dismiss - on personal jurisdiction grounds - by the OM Defendants and BMG France (collectively referred to as, “the French Defendants”) pending a period of jurisdictional discovery (see dkt. 57 at 26-27). Accordingly, Plaintiff may take only jurisdictional discovery at this time. See id. at 21-22; see also id. at 26 (“The Court refers the matter to a randomly assigned Magistrate Judge for jurisdictional discovery.”). It should also be noted that the now-operative pleading - the SAC - has been filed but has not yet been responded to; and, the French Defendants' dismissal motion on personal jurisdictional grounds - which is directed to the FAC - remains pending while the Parties engage in jurisdictional discovery.
Letter Brief of August 7, 2024 (dkt. 70)
As mentioned, the first of the Parties' two sets of disputes are between Plaintiff and the OM Defendants and can be reduced to four categories - disputes about proper custodians, the proper timeframe regarding searches and document production, reportedly improper discovery responses, and a dispute concerning a subpoena served on the OM Defendants' Pennsylvania-based trademark counsel, K&G Law, LLP. See Ltr. Br. (dkt. 70) at 1-3.
Custodians
Plaintiff seeks to include custodial searches for Jacques-Henri Eyraud (former President of OMS and OMD) and Frank McCourt (both OM Defendants' sole owner). Id. at 1. The OM Defendants submit that they “have [already] identified three employees as custodians who were most involved in the OM Records venture, including the negotiation of the OM Records term sheet and the marketing and distribution of the label.” Id. at 4. The OM Defendants add that Plaintiff's counsel recently agreed to start with these custodians and revisit the issue after document production progresses, however, Plaintiff now nevertheless seeks discovery from OMS's former highest-ranking officer, Mr. Eyraud, and OMS's ultimate, beneficial owner, Mr. McCourt (who is not a party to this action or to the OM Records term sheet). Id. Relying on allegations set forth in the SAC, Plaintiff contends that the OM Records venture was launched “following three years of dialogue between Mr. McCourt and a senior BMG U.S. executive,” and that “these two individuals, acting on behalf of their respective organizations, were responsible for conceiving and launching the OM Records venture, and did so at least in part [while] in the U.S. and California.” Id. at 3. Plaintiff adds that Mr. McCourt (who has substantial connections to this State) republished a certain press release about this venture on his “McCourt Global” website (which is his private family company with an office in Los Angeles) Id. Further, Plaintiff notes that in mid-2020, the 50/50 partnership underlying the OM Records venture was memorialized in a partnership agreement that was signed by Mr. Eyraud on behalf of OMS and that “[h]e is also the sole signatory on the assignment of the infringing OM Records trademark from OMS to OMD.” Id. (citing SAC ¶ 11).
In short, Plaintiff argues that “Mr. McCourt's participation in the OM Records venture is particularly relevant to the jurisdictional inquiry [because] [h]e is located here [in California].” Id. As to Mr. Eyraud, Plaintiff submits that “[h]is signature is all over the core documentation. And, more likely than not, he directly communicated with Mr. McCourt. And if Mr. Eyraud did communicate with Mr. McCourt about Defendants' venture while Mr. McCourt was in the U.S., that would demonstrate jurisdictional contacts here.” Id. As to Mr. McCourt, Plaintiff's reasoning seems attenuated - at best. Judge White held, for personal jurisdiction purposes, that: (1) Defendants' alleged knowledge of Plaintiff's business does not create express aiming; (2) that Defendants' use of California-based social media, music, and video channels does not constitute express aiming; and, (3) that even Defendants' deal with California-based Trackdilla does not show express aiming towards the forum. See Order (dkt. 57) at 12-16. Judge White also found that the involvement of Mr. McCourt does not relate to the French Defendants. Id. at 17-18 (“McCourt owns the Olympique de Marseille soccer club, which is a separate legal entity from OM Developpement. [] McCourt did not sign the partnership agreement. Plaintiff makes no showing that McCourt is personally responsible for Olympique de Marseille's conduct, or that McCourt's conduct should be imputed to Olympique de Marseille. At best, there is an attenuated connection between these nonparty individuals and the foreign defendants, but this connection does not demonstrate that the French Defendants purposely directed their activities towards the United States.” (citing Uhlig v. Fairn & Swanson Holdings, Inc., No. 20-CV-00887-DMS-MSB, 2020 WL 6872881, at *3 (S.D. Cal. Nov. 23, 2020) (ownership and control of nonresident defendant alone do not establish the requisite level of control for alter ego jurisdiction)). Id. at 18.
While Plaintiff has added some allegations to the SAC in this regard (the plausibility of which has yet to be evaluated), the OM Defendants contend that “Plaintiff's conclusory (and baseless) allegation in the SAC that Mr. McCourt was ‘directly involved in the operation' of OM Records after its launch (SAC at ¶16) does not alter Judge White's reasoning or entitle Plaintiff to his files.” See Ltr. Br. (dkt. 70) at 4-5. The OM Defendants also argue that requiring them to search the files of Mr. Eyraud and Mr. McCourt would be unduly burdensome and disproportionate to the needs of this action, and that it will not lead to discovery of information that Judge White ruled is relevant to the jurisdictional inquiry at hand. Id. at 4. Moreover, the OM Defendants argue that “Mr. McCourt should not be a custodian because he is not an officer, director, or employee of either of the OM Defendants and thus his documents are not in the possession, custody, or control of either entity as required under Rule 34,” and, that “neither Mr.
Eyraud nor Mr. McCourt [were] substantively involved in the OM Records venture: (1) although Mr. Eyraud signed a handful of relevant agreements, that demonstrates nothing more than that he signed agreements as a senior officer; and (2) as Judge White explicitly ruled, Mr. McCourt's ‘alleged participation' (involvement in pre-launch discussions with a BMG U.S. executive) does not create minimum contacts with the United States and is not attributable to any of the French Defendants.” Id. (internal quotations and citation omitted).
In short, the undersigned finds that Plaintiff has failed to show any likelihood that either of its proposed custodians would be in possession of relevant documents which would not be expected to be produced through the custodians that “[t]he OM Defendants have [already] identified,” to wit, the “three employees [] who were most involved in the OM Records venture, including the negotiation of the OM Records term sheet and the marketing and distribution of the label.” Id. at 4. Also, Plaintiff's portion of the Letter Brief does not address the OM Defendants' contentions regarding proportionality, or the suggestion that neither Mr. Eyraud nor Mr. McCourt had any significant involvement in the OM Records venture.
When moving to compel discovery, the moving party has the burden of demonstrating relevance. See e.g., Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995). Beyond that, in order to succeed on a motion to compel, a moving party bears the burden to show that it has satisfied proportionality and other requirements of Rule 26. See Rodriguez v. Barrita, Inc., No. 0904057 RS-PSG, 2011 U.S. Dist. LEXIS 134079, at *4 (N.D. Cal. Nov. 21, 2011). In light of this, courts are required to limit discovery if its burden or expense outweighs its likely benefit; this is “the essence of proportionality,” a frequently ignored or overlooked discovery principle. In re Glumetza Antitrust Litig., 2020 U.S. Dist. LEXIS 113361, at *31-32 (citing Apple Inc. v. Samsung Elecs. Co., No. 12-cv-0630-LHK (PSG), 2013 U.S. Dist. LEXIS 116493, at *34-36 (N.D. Cal. Aug. 14, 2013)). Thus, for the reasons stated by the OM Defendants, and also because Plaintiff has not demonstrated any likelihood that either of its proposed custodians would be in possession of any evidence relevant to the jurisdictional inquiry at hand that would not be expected to be produced through the three employee custodians already-identified by the OM Defendants, Plaintiff's request to compel the OM Defendants to include Mr. Eyraud and Mr. McCourt as custodians is DENIED.
Timeframe
The Parties also dispute the proper timeframe to which the document searches would be limited. See Ltr. Br. (dkt. 70) at 2, 5. Plaintiff seeks a date range that begins in September of 2017 because of the suggestion that this “date is consistent with the press release announcing the Partnership Agreement, reciting that conversations between the ‘architects' of the OM Records venture (Mr. McCourt and another U.S. citizen) were underway three years prior to the public announcement of that venture” - Plaintiff believes that “[t]hese communications, which more likely than not include negotiation over the terms and conditions of the venture's Partnership Agreement and use of the OM Records name and mark in the U.S., as well as the drafting and transmission to U.S. publications of Defendants' press release announcing their OM Records venture [], are relevant to jurisdictional contacts here.” Id. at 2. Plaintiff adds that “if the Defendants were discussing Plaintiff during the period before the public announcement of their OM Records venture, that would constitute further proof of their ‘targeting' here in the U.S.” Id. As an initial matter, this approach appears to misapprehend the sort of contact with the forum that would establish jurisdiction. See Order (dkt. 57) at 12-16, 17-21
In any event, OM Defendants submit that Plaintiff's proposed six-year period is unnecessarily long for present purposes and that, given that the OM Records venture was launched in September of 2020, a January 1, 2020, starting point “is sufficient to capture any relevant discussions between OMS and BMG France (the parties to that agreement).” Ltr. Br. (dkt. 70) at 5. The OM Defendants add that “Judge White held that Mr. McCourt's pre-launch involvement in conceiving the record label (before the term sheet was signed and before the OM Records name was ever used) is not a basis for exercising personal jurisdiction over the OM Defendants,” and that because “Judge White similarly held that the ‘individualized targeting' theory is not sufficient,” Plaintiff's inquiry into the OM Defendants' knowledge of Plaintiff's forum connections is unavailing. Id. (citing Order (dkt. 57) at 12-13). Nevertheless, the OM Defendants have agreed to re-consider their position on the timeframe issue if, based on the review of the documents that will be produced, Plaintiffs continue to consider the starting point of January 1, 2020, too restrictive. Id. In this regard, Plaintiff's argument about what the earlier starting point might yield seems to rest on a speculative foundation rather than on a concrete basis. The court finds merit in the OM Defendants' proposed approach that the issue should be revisited if Plaintiff can later articulate a concrete argument as to why - as a matter of fact (rather than mere speculation) - a date range that starts on January 1, 2020, is too restrictive. Accordingly, Plaintiff's request to compel the OM Defendants to use a starting point earlier than January 1, 2020, is DENIED.
The OM Defendants' Responses to Plaintiff's Document Requests
In the most general of terms, Plaintiff complains that the OM Defendants have provided reportedly improper responses to a large but unspecified number of Plaintiff's document requests. See Ltr. Br. (dkt. 70) at 3. In essence, Plaintiff only states that “the OM Defendants fail to specify what they are withholding,” and that “their amended responses repeatedly and substantively alter the nature of the request, raising the standard for discoverable material under Rule 26.” Id. Plaintiff then adds that “[t]he OM Defendants must answer the discovery actually served on them, not the discovery they wish was served on them, rewriting the requests and taking it upon themselves to determine what documents relate to their contacts here.” Id. Plaintiff's portion of the letter brief goes no further in identifying any specific document requests and responses at issue; instead, Plaintiff has attached a 51-page document (see Exh. A (dkt. 70-1) at 2-52) containing what appears to be the entirety of the OM Defendants' amended responses and objections to Plaintiff's second set of requests for production with the expectation that the court might sift through the entirety of that document in order to piece together specific objections and responses that may or may not be responsive to each of the 32 underlying document requests (i.e., RPF Nos. 52-84).
For their part, the OM Defendants state that they have agreed to search for and produce any responsive, non-privileged documents for eight requests-Nos. 56, 62, 64, 69, 74-76, and 84, and that “[a]s for others - Nos. 51-55, 59-61, 63, 65-68, and 70-71 - the OM Defendants are willing to search for and produce any non-privileged documents to the extent that they relate to the scope of discovery as framed by Judge White - i.e., ‘the French Defendants' . . . use and distribution of the OM Records mark in California or the United States.'” Id. at 5 (quoting Order (dkt. 57) at 21) (Judge White's order permitting jurisdictional discovery established the following contours for the limited discovery into jurisdiction: “[f]urther inquiry into each of the French Defendants' actions with regard to use and distribution of the OM Records mark in California or the United States could yield evidence that the French Defendants did target California or the United States, rather than merely France and other Francophone countries. In particular, evidence that the French Defendants promoted the “OM Records” brand within California in conjunction with Trackdilla could support a finding of purposeful direction here. The Court finds that limited jurisdictional discovery is appropriate.”).
Because the contours of the limited jurisdictional discovery currently underway were so clearly set forth 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 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 be the case here), the court will invite the prevailing party - pursuant to Fed.R.Civ.P. 37(a)(5) - to submit a request for an award of expenses incurred in connection therewith.
It clearly appears that Plaintiff is not engaging the OM Defendants in good faith efforts to narrow or resolve discovery issues without having to resort to court intervention. First, Plaintiff's portion of the letter brief is silent as to the eight requests for production that the OM Defendant claim they have agreed to search for and produce as to any non-privileged materials. Second, Plaintiff's portion of the letter brief makes no effort to discuss or address the OM Defendants' assertion that their responses and objections to the remainder of Plaintiff's requests for production state that they are willing to search for and produce all non-privileged materials so long as they do not fall outside the contours of jurisdictional discovery, as set forth in Judge White's Order of June 17, 2024. Third, Plaintiff's generalized request for the court to sift through dozens of requests and responses lacks the requisite specificity to satisfy the legal requirements applicable to a request to compel discovery. See e.g., Traverso v. City of Enumclaw, 2012 U.S. Dist. LEXIS 98461, *6 (W.D. Wash., Jul. 16, 2012) (“A motion to compel should identify what discovery requests are in dispute, explain why the material requested is discoverable, and reflect the parties' reasonable efforts to narrow their disputes without court intervention.”).
This failure to describe and justify the allegedly missing discovery that Plaintiff wishes to compel is demonstrative of the fact that it has not met its burden of showing relevance and proportionality. See Apple Inc. v. Samsung Electronics Co., Case No. 12-CV-0630-LHK (PSG), 2013 U.S. Dist. LEXIS 91450, 2013 WL 3246094, at *21 n.84 (N.D. Cal. 2013) (“In this district, the party moving to compel has the burden of showing relevance.”); see also Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (“[I]n general the party seeking to compel discovery bears the burden of showing that his request satisfies the relevance requirement of Rule 26.”); Sakas v. Settle Down Enterprises. Inc., 90 F.Supp.2d 1267, 1282-83 (N.D.Ga. 2000) (denying for lack of specificity a motion to compel discovery which was phrased in general terms); see also Arons v. Lalime, 167 F.R.D. 364, 368 (W.D.N.Y. 1996) (reiterating that it had previously denied plaintiff's motion to compel discovery primarily because it had failed to identify, with specificity, the discovery requests and responses at issue); James v. Lee, 2021 U.S. Dist. LEXIS 103726, *12 (S.D. Cal., June 2, 2021) (“The Court cannot compel Defendant to produce the discovery Plaintiff seeks, for Plaintiff has not identified with any specificity what discovery he has requested Defendant to produce.”); Johnson v. Northwest Airlines, Inc., 2009 U.S. Dist. LEXIS 30731, 2009 WL 839044, at *2 (N.D. Cal., Mar. 30, 2009) (“Although the burden on parties requesting discovery is low, they must meet a threshold of relevance that is beyond speculation; litigants seeking to compel discovery must describe with a reasonable degree of specificity the information they hope to obtain and its importance to their case.”); see also Temblay v. OpenAI, Inc., 2024 U.S. Dist. LEXIS 87023, *5-6 (N.D. Cal., May 14, 2024) (same). For these reasons, as well as those stated by the OM Defendants (see Ltr. Br. (dkt. 70) at 5), Plaintiff's document requests are DENIED. As stated above (see n.1 supra), the court expects any forthcoming discovery disputes to either be resolved informally, or to be narrowed as a result of good-faith meet and confer efforts, to be substantially justified, and to be presented properly in accordance with the standards for articulating discovery disputes set forth above.
K&G Law Subpoena
Plaintiff has issued and served a subpoena for documents on the OM Defendants' Pennsylvania-based trademark counsel, K&G Law. See Ltr. Br. (dkt. 70) at 3. Plaintiff submits, again in general terms, that “K&G was focal point in the U.S. for Defendants' effort to interfere with Plaintiff's trademark rights here - an effort eventually abandoned when the E.U. Intellectual Property Office declared the French trademark registration used to gain priority in the U.S. to be filed in bad faith.” Id. Plaintiff then adds that “K&G earlier indicated to Plaintiff's Pennsylvania counsel that it had identified 98 non-privileged documents that it expected to produce,” but that “[s]ince then, [] K&G has failed and refused to do so, presumably at its former clients' direction.” Id. However, what is fatal to Plaintiff's request is that its portion of the letter brief is silent as to the following information: (1) the types documents sought by the subpoena; (2) any explanation as to their relevance to the scope of jurisdictional discovery currently underway; (3) any showing as to their proportionality to the needs of the case; and, perhaps most importantly, (4) any specific information about the face of the subpoena as to where compliance is required, given that Fed.R.Civ.P. 45(d)(2)(B)(i) directs the serving party to file motions to compel in “the district where compliance is required,” and in light of the fact that some courts analyze the appropriate place for a subpoena dispute based on the location identified on the face of the subpoena, even if it is not where compliance is actually required.
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 plain language of Rule 45(d), Apple's motion to compel is properly filed in this district, as it is the place where compliance is required on the face of the subpoena, even if that place of compliance is not proper under Rule 45(c).”).
The OM Defendants respond by suggesting that the subpoena is improper because it is directed at materials that are almost exclusively privileged, and that it concerns a subject that Judge White has already rejected as being a basis for jurisdiction (to wit, OMD's abandoned U.S. trademark application) (citing Order (dkt. 57) at 20-21). Id. at 5. Nevertheless, the OM Defendants report that K&G has timely responded to the subpoena, and that “it is counsel's understanding that K&G is willing to produce any responsive, non-privileged documents, notwithstanding its objections, to avoid unnecessary motion practice.” Id.
Once again, it appears that the OM Defendants' responses are falling upon deaf ears. Put another way, it appears that Plaintiff is not engaging in good faith efforts to narrow or resolve its discovery disputes, or at least to wait until they are ripe before dumping them onto the court's lap in a raw and undeveloped form. The subpoena dispute is raw and undeveloped because Plaintiff has provided no detail whatsoever about the information it seeks through the subpoena or about the necessary details for a court to determine whether any enforcement of the subpoena ought to take place in this district in the first place. Then there is the fact that the OM Defendants report that “K&G is willing to produce any responsive, non-privileged documents, notwithstanding its objections, to avoid unnecessary motion practice” (id.), which stands in direct conflict to Plaintiff's statement that K&G will not produce whatever unspecified documents are sought through this subpoena, “presumably” at the direction of the OM Defendants (id. at 3). The entire purpose underlying the joint-filing letter brief approach to presenting discovery disputes has been undermined by the above-described disconnect in the Parties' arguments. See Synopsys, Inc. v. Ubiquiti Networks, Inc., 2018 U.S. Dist. LEXIS 231138, *5 (N.D. Cal. April 9, 2018) (“The meet-and-confer and joint-letter-brief processes are not meant to be check-the-box exercises that the parties rush through so they can file discovery motions with the court as quickly as possible.”); see also Synopsys, 2018 U.S. Dist. LEXIS 85255, *5 (N.D. Cal. May 21, 2018) (“[O]ne of the central purposes of the joint-letter-brief process [is] so that the parties can see each other's positions and arguments, can respond to them, can re-respond to the responses, etc., and thereby (1) try to find areas of compromise and work out their disputes amongst themselves and (2) narrow, sharpen, and focus the issues they cannot resolve before they present those issues to the court.”). Going forward, if there are to be any further discovery disputes, the court expect a substantially better effort from Plaintiff in the areas of narrowing its disputes and actually addressing the arguments presented by the other party to the discovery dispute. For the reasons stated above, Plaintiff's request to “[d]irect the OM Defendants and K&G to produce responsive documents together with a privilege log no later than 15 days from the date of the Court's order” is DENIED.
Letter Brief of August 12, 2024 (dkt. 72)
The second of the Parties' two sets of disputes are between Plaintiff and the BMG Defendants and also can be reduced to four categories: disputes about proper custodians for search purposes; disputes about reportedly improper discovery responses; disputes related to a subpoena addressed to a former BMG U.S. executive; and, a dispute regarding Plaintiff's desire to take a deposition from that same former BMG U.S. executive. See Ltr. Br. (dkt. 72) at 1-3.
Initially, the court will address the BMG Defendants' resistance to Plaintiff's efforts to rope BMG U.S. into the jurisdictional inquiry. See id. at 5-6. In this regard, the BMG Defendants contend that the limited jurisdictional discovery currently underway should only be applicable to the French Defendants, and that BMG U.S. is not subject to jurisdictional discovery. Id. In this regard, the undersigned will note two things. First, Judge White referred “ the determination of the scope of jjurisdictional discovery and potential discovery matters that may arise” to the undersigned. See Order (dkt. 57) at 21-22 (emphasis supplied). Second, as to Plaintiff's allegations that Mr. McCourt (the American owner of the Olympique de Marseille soccer team) conceived of the idea for the infringing record label, and as to Mr. John Loeffler's involvement (the BMG U.S. executive who was reportedly responsible for conceiving and launching Defendants' venture and who was reportedly bound by BMG France, via the venture's Partnership Agreement, to stay involved in the venture), Judge White held that “[i]n order for Loeffler's vague involvement to be imputed to BMG France, Plaintiff would first need to make a showing that Loeffler's actions could be imputed to BMG US, and second that BMG U.S. is an alter ego of BMG France.” See Order (dkt. 57) at 17-18. The upshot of these two observations is that the undersigned will not accede to the BMG Defendants' request to exclude BMG U.S. from the jurisdictional discovery process. However, neither shall Plaintiff have the right to exceed the contours of jurisdictional discovery set forth in Judge White's June 17th Order such as to venture beyond those contours as it seems to be wont to do given the overbreadth - and at times patently irrelevant phrasing - of its requests for production (see Exh. A (dkt. 72-1) at 7) (see e.g., RFP No. 50, asking for documents reflecting the local of consumers who viewed, streamed, purchased, and/or downloaded any and all Om Records Enterprise songs, albums or music videos platforms from 2020 to present -without regard for their global location, or any other limitation pertinent to the issue of personal jurisdiction over the French Defendants; see also RFP No. 52, asking for all documents showing the extent of the Olympique de Marseille football club's fanbase in California from 2020 to present; see also RFP No. 53, seeking all documents relating to the Olympique de Marseille football club's San Francisco or Los Angeles fan clubs from 2017 to present). Like these examples, many of Plaintiff's requests seem to be either too broadly phrased, or patently irrelevant to any issue in the case - let alone the issue of personal jurisdiction over the French Defendants.
Thus, the undersigned will grant Plaintiff limited leeway to take some jurisdictional discovery from BMG U.S. - but only to the extent that would be necessary to make a showing (if possible) that Mr. Loeffler's actions should be imputed to BMG US, and that BMG U.S. should be considered as an alter ego of BMG France. Within these limits, Plaintiff's request to deem Mr. John Loeffler and Mr. David Hirshland (two BMG U.S. executives that Plaintiff contends were involved in the venture associated with the infringing mark) as proper custodians for search purposes is GRANTED.
Further, subject to the limitations set forth below, Plaintiff's request to deem Mr. Sylvain Gazaignes (a BMG France executive who reportedly signed the venture's Partnership Agreement and aided Mr. Hirshland in coordinating the venture's response, and to whom Mr. Loeffler reported on matters relating to the venture), and Mr. Emilie Hauck (a BMG France employee who was reportedly made the Artistic Director for the infringing record label who reported to Mr. Gazaignes and was reportedly based in the OM Defendants' offices in Marseille) is GRANED. Thus, to the extent stated herein, the BMG Defendants' request to prevent Plaintiff from seeking any discovery from BMG U.S. is DENIED. Furthermore, because the jurisdictional inquiry is limited, the undersigned finds that paper discovery is sufficient for present purposes and that Plaintiff has not made a showing as to why Mr. Hirshland must be deposed at this time. Accordingly, the BMG Defendants' request to prevent Plaintiff from taking Mr. Hirshland's deposition is GRANTED.
As to the scope of the documents that Plaintiff can request, the BMG Defendants submit that Plaintiff's discovery should be limited to the categories of documents set forth in Exhibit G (see Exh. G (dkt. 72-1) at 50-51). Having reviewed Exhibit G and the Parties' submissions in this regard (Ltr. Br. (dkt. 72) at 1-6), the BMG Defendants' request is GRANTED in part and Plaintiff's discovery requests to the BMG Defendants shall be limited to the categories set forth in Exhibit G, as well as discovery that would be necessary for Plaintiff to make a showing that any jurisdictionally-significant action (as described in Judge White's June 17th Order) on the part of any BMG U.S. officer or executive is able to be imputed to BMG US, and if so, any discovery that might show that BMG U.S. is an alter ego of BMG France.
Going forward, if Plaintiff wishes to take discovery beyond the parameters described herein, or if a dispute arises otherwise, the Parties are ORDERED to meet and confer in a meaningful fashion such as to resolve or narrow their discovery disputes to distinct, discrete, and genuine issues, such that they can be articulated properly in a 5-page letter brief in accordance with the standards set forth herein. If such a letter brief is to be filed, Plaintiff is specifically admonished to take care to carefully address any of Defendant(s)' contentions, concessions, and arguments such as to avoid needlessly bringing unripe or undeveloped disputes before the court (see n.1 supra).
IT IS SO ORDERED.