United States District Court, N.D. Illinois, Eastern Division
JOSHUA WOODARD, NEIL WESTFALL, ALEX SHELNUTT, and JEREMY MCKINNON, all professionally known as A DAY TO REMEMBER, Plaintiffs,
VICTORY RECORDS, INC. and ANOTHER VICTORY, INC., Defendants.
MEMORANDUM OPINION and ORDER
YOUNG B. KIM, Magistrate Judge.
On November 7, 2013, this court issued an opinion and order finding that attorney-client privilege did not attach to certain documents shared with non-party John Janick. On December 23, 2013, Janick produced some documents in response to a subpoena served on him by Defendants and submitted a privilege log shortly thereafter. Plaintiffs then filed the current motion to quash or modify the subpoena on the basis of attorney-client privilege and work-product protection. On May 13, 2014, this court ordered Plaintiffs to submit the documents identified on the privilege log to the court for an in camera inspection. Having completed its review, the court finds that Janick properly withheld some, but not all of the documents identified on the privilege log. For the following reasons Plaintiffs' motion is granted in part and denied in part:
The court has described portions of this case's background facts and procedural history in previous opinions resolving Plaintiffs' motion for a protective order seeking to prohibit Defendants from using allegedly privileged documents in Janick's deposition, see Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 WL 4501455, at *1 (N.D. Ill. Aug. 22, 2013), and Defendants' motion for an order declaring certain emails unprotected by the attorney-client privilege, see Woodard v. Victory Records, Inc., No. 11 CV 7594, 2013 WL 5951768, at *1-2 (N.D. Ill. Nov. 7, 2013) (the "Order"). What follows are the facts and allegations most pertinent to the questions presented in the current motion.
According to Plaintiffs (or "the Band"), in August 2009 they hired Mark Mercado and John Youngman of FlySouth Music Group, Janick of the Fueled By Ramen record label, and Jason Childress and Noel Hartough of Curo Financial, LLC, as managers. (R. 1, Pls.' Mot. at 2.) Plaintiffs state that shortly after being hired, the managers sought advice from their attorneys at the time, Nick Ferrara and Mike McCoy of Serling Rooks & Ferrara, LLP, regarding the Band's deteriorating relationship with Defendants. (Id. at 3.) When that relationship failed to improve, Plaintiffs retained attorneys Jeff Leven and Danny Hayes of Davis Shapiro Lewitt & Hayes, LLP, in late August 2010 and retained attorney Jay Bowen of Bowen Hayes & Kreisberg, PLC, as litigation counsel in late September 2010. (Id. at 3-4.)
Plaintiffs filed this lawsuit against Defendants on May 31, 2011, in the Middle District of Tennessee, seeking the following: (1) declaratory judgment that Plaintiffs had satisfied their obligations under an agreement they signed with Defendants ("the Deal Memo"); (2) declaratory judgment that Plaintiffs own copyrights in all recordings and compositions created during the term of the Deal Memo; (3) judgment on a breach of contract claim for Defendants' failure to pay royalties; (4) equitable accounting to determine the extent of Defendants' breaches; and (5) judgment on Tennessee consumer protection claims. (R.C. 1, Compl.)
The case was transferred to this district in October 2011 pursuant to 28 U.S.C. § 1406(a). (R.C. 41, Order.) In July 2012, Plaintiffs inadvertently produced a set of allegedly privileged emails to Defendants during the course of discovery. (R. 1, Pls.' Mot. at 9.) Will Parsons, an attorney for Plaintiffs, sent Defendants' counsel Richard Meloni a letter on July 25, 2012, asking him to destroy all copies of the emails. Woodard, 2013 WL 4501455, at *1. Although the parties dispute how Meloni responded to Parsons's letter, nothing happened with those documents until a year later in June 2013 when Meloni asked Mercado questions about the documents during a deposition over Parsons's objection. Id.
On July 10, 2013, Defendants served a subpoena on Janick issuing from the Central District of California ("the Subpoena") commanding him to appear on July 31, 2013, to provide testimony and documents related to this action. (R. 17-14, Janick Subpoena.) On July 24, 2013, Plaintiffs moved for a protective order demanding the return of the allegedly privileged emails they inadvertently disclosed and which Defendants used during Mercado's deposition, and asking this court either to prohibit the use of those documents at Janick's upcoming deposition or to stay his deposition pending resolution of Plaintiffs' claim of privilege.
On August 22, 2013, this court first explained in an opinion and order that it lacked jurisdiction and adequate information to address the issue of whether the documents were in fact privileged. Woodard, 2013 WL 4501455, at *2 n.3. This court then ordered Defendants to sequester or destroy the communications and refrain from using them, or Mercado's testimony based on them, until the issue of privilege could be resolved. Id. at *4. The court also ordered Defendants to refrain from using the documents during Janick's deposition if they wished to proceed with the deposition prior to a privilege determination being made. Id. On September 3, 2013, Janick formally objected to the Subpoena on the basis of attorney-client privilege and the attorney work-product doctrine, among other reasons. (R. 17-18, Janick's Objections at 2-3.)
Defendants filed a "Motion for Order of Waiver of Privilege" a week later on September 10, 2013, challenging Plaintiffs' assertion of privilege over the inadvertently disclosed documents with the aim of using them in Janick's deposition. (R.C. 207, Defs.' Mot. Order of Waiver at 2-3.) In its Order on November 7, 2013, this court applied Illinois law to conclude that based on the information provided by the parties, Janick did not have an agency relationship with Plaintiffs, so email communications shared with Janick lacked the requisite confidentiality for attorney-client privilege to attach. Woodard, 2013 WL 5951768, at *3, *7. This court ultimately found that all but two of the documents were not privileged and could be used by Defendants for any purpose related to this litigation. Id. at *7.
The next day on November 8, 2013, Meloni forwarded a copy of the Order to JoAn Cho, Janick's counsel at the time and counsel for Universal Music Group ("UMG"), renewing Defendants' demand that Janick produce any documents responsive to the Subpoena previously withheld on the basis of privilege. (R. 17-22, Meloni Email to Cho, Nov. 8, 2013 at 1.) On November 15, 2013, Cho replied saying she would consider the Order but noted that "the subpoena does not require the production of documents prior to the deposition." (R. 17-22, Cho Email to Meloni, Nov. 15, 2013 at 1.) On November 18, 2013, Meloni sent a letter to Cho in which he wrote "during the past few months, we had agreed to adjourn Mr. Janick's deposition on several occasions.... Whatever the reasons, it was pursuant to the mutual agreement between me, you and counsel for the band." (R. 17-25, Meloni Letter to Cho, Nov. 18, 2013 at 3.) Meloni also warned Cho that asserting the right to withhold production until the date of deposition would "not only impede the expediency that would otherwise occur if we had the documents now, " but that he might also "seek the Court's intervention, including a motion to bring Mr. Janick back for an additional day of deposition, or for sanctions should the document production fail to redress the improper objections relating to confidentiality and attorney-client privilege[.]" (Id. at 4.) Meloni concluded his letter by renewing his request that Janick produce the documents called for in the Subpoena. (Id.)
On November 21, 2013, Cho informed Meloni that she was recommending that Janick retain separate counsel. (R. 17-1, Meloni Decl. ¶ 51.) On December 4, 2013, Janick retained Donald Zakarin as his new attorney and the parties agreed to adjourn Janick's deposition again to accommodate Zakarin's transition. (Id. ¶¶ 52-53.) On December 10, 2013, Meloni emailed Zakarin asking whether he was "agreeable to producing documents in advance of the deposition once we schedule it." (R. 17-26, Meloni and Zakarin Emails, Dec. 10, 2013.) Zakarin responded by proposing the week of January 20, 2014, for Janick's deposition. (Id.) Zakarin also noted that he was still getting "up to speed" but understood that Bowen, Plaintiffs' litigation counsel, had "issues" with the documents sought in the Subpoena. (Id.)
On December 23, 2013, Janick produced approximately 1, 400 pages of emails responsive to the Subpoena's document requests, followed by a privilege log on January 9, 2014, listing 28 emails withheld from production on the basis of attorney-client privilege and the attorney work-product doctrine. (See R. 31, Meloni Reply Decl. ¶¶ 60-61.) On January 21, 2014, Plaintiffs filed the instant motion in the Central District of California. (R. 1, Pls.' Mot.) Defendants filed their amended opposition and cross-motion on February 4, 2014. (R. 17, Defs.' Opp.) Plaintiffs filed their opposition to Defendants' cross-motion, along with a reply in support of their motion, on February 21, 2014. (R. 28, Pls.' Opp.; R. 29, Pls.' Reply.) On March 3, 2014, Defendants filed a reply in support of their cross-motion. (R. 30, Defs.' Reply.) On March 12, 2014, the Central District of California granted Defendants' cross-motion and transferred Plaintiffs' motion to this district. (R. 39, Order at 3.) On April 21, 2014, the assigned district judge referred Plaintiffs' motion to this court for resolution. (R. 44.)
On May 13, 2014, the court ordered Plaintiffs to turn over the 28 emails at issue for an in camera review. According to their privilege log, Plaintiffs are asserting attorney-client privilege over all 28 emails and work-product protection over 20 of the 28 emails. (R. 1, Pls.' Mot., Ex. 1.) Janick ...